What next for divorce?

July 2018

The Supreme Court has dismissed Mrs Owens’ appeal in the recent case of Owens v Owens and many family lawyers join those calling for a ‘No Fault’ divorce option for couples wishing to divorce amicably but what does this mean in practice?

Mr and Mrs Owens married in 1978 and have two adult children.  Over the past few years, Mrs Owens, now aged 68, had become increasingly unhappy about their relationship and contemplated applying for a divorce several times.  Her petition was filed at the Court in May 2015 and was based on Mr Owens’ “unreasonable behaviour”.  Mr Owens, now aged 80, defended the application, stating that the claims about his behaviour were exaggerated or untrue and he wished to remain married.

The judge who first decided this case found that Mrs Owens’ allegations were ‘flimsy’ and did not amount to enough to prove that Mr Owens’ behaviour was such that Mrs Owens could not reasonably be expected to live with him.  In other words, the Court would not grant Mrs Owens the decree of divorce that she wanted.

Mr and Mrs Owens each appealed this decision back and forth through the family courts until the final decision was made by the Supreme Court on 25th July 2018.  Although none of the judges felt comfortable with the law as it stands, they all concluded that the first judge had been right and that Mrs Owens had not proved that she was entitled to a divorce.

So what questions does this raise?

Currently, to successfully obtain a divorce, the person applying, “the petitioner,” has to be able to prove that one of the following applies:

  1. That the other person, “the respondent” has committed adultery and the petitioner finds in intolerable to live with them.
  2. That the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent;
  3. that the respondent has deserted the petitioner for a continuous period of at least two years immediately before the petition is filed;
  4. that the parties have lived apart for a continuous period of at least two years immediately before the petition is filed and the respondent consents to the divorce.
  5. that the parties to the marriage have lived apart for a continuous period of at least five years before the petition is filed.

It has long been accepted that most divorce petitions based on the respondent’s ‘unreasonable behaviour’ will include only a short description of what has happened in fairly neutral language.  This is because long or strongly worded petitions may only increase the acrimony between a couple whose relationship has already become strained.  The Court’s approach reflects this practice; contested divorce hearings have been rare and those that do proceed are quite brief and focused on the main allegations only as judges take the view that it is unpalatable to insist that a couple remain married when one party so clearly wishes to divorce.  But in light of Owens v Owens, might divorce lawyers ‘beef up’ the details in the petition?  This question has yet to be fully answered but many divorce lawyers consider that this would be detrimental to both parties and the whole family.

There have been calls for a ‘No Fault’ divorce option to be introduced for many years but as it stands, unless the couple waits for 2 years after their separation, there is no such choice.  It would need the law to be changed by Parliament to achieve it.  Resolution, an organisation of family lawyers which promotes a conciliatory approach to family law disputes, is at the forefront of the calls for reform.

Nigel Shepherd, Resolution’s past Chair and long-time campaigner for no fault divorce, echoed this call for law makers to take action:

“As an organisation who intervened in the case in support of Mrs Owens, we are disappointed at today’s judgment and what it means for her.

“Whilst the Supreme Court has, reluctantly, applied the law correctly, the fact that they have done so confirms there is now a divorce crisis in England and Wales, and the government needs to take urgent action to address it.

“In this day and age, it is outrageous that Mrs Owens – or anybody – is forced to remain trapped in a marriage, despite every judge involved in the case acknowledging it has come to an end in all but name. Today’s judgment underlines just how vital it is that government now urgently reforms the divorce law.

“It should not be for any husband or wife to ‘prove’ blame as the law requires many to do – this is archaic, creates needless conflict, and has to change.”

So, if you are considering applying for a divorce and wish to rely on the respondent’s behaviour, some thought will need to be given to the details of the petition.  For the time being, we strongly endorse the recommendations of Resolution to keep divorce petitions as neutral as possible whilst ensuring that there is sufficient to prove the divorce.  Time will tell whether the law or legal practice will change as a result of this landmark decision but for the moment, we urge anyone considering an application for divorce to take legal advice.



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