Supreme Court invites Parliament ‘to consider’ reforming the current divorce law in England and Wales in recent case

There has been much discussion amongst family lawyers for many years, regarding the implementation of a ‘no-fault’ or ‘blameless’ divorce and the recent case of Owens v Owens [2018] UKSC 41 has, once again, brought this issue to the fore.

In order to be granted a divorce, the court must be satisfied that the marriage has irretrievably broken down with the petitioner utilising one of the five facts of divorce. Mrs Owens petitioned for a divorce from her husband of 40 years, citing the fact that her husband’s unreasonable behaviour was such that she cannot reasonably be expected to live with him (s1(2)(b) Matrimonial Causes Act 1973). The examples cited by Mrs Owens included, that her husband ‘prioritised his work over their life at home’; showed his wife ‘no love or affection’ and was ‘moody and argumentative’. The parties also lived in separate neighbouring properties.

Mr Owens defended the petition on the basis that the behaviour cited by Mrs Owens did not satisfy the requirements of s1(2)(b) and therefore she was not entitled to a divorce. At a case management hearing, Mrs Owens was permitted to amend the divorce petition and cited 27 examples of her husband’s behaviour.

Mrs Owens’ case was dismissed by the first instance judge who agreed that the marriage had undoubtedly broken down however, the examples of Mr Owens’ unreasonable behaviour did not satisfy the requirements of s1(2)(b) MCA 1973. The judge considered these were weak arguments and the behaviour was not unreasonable enough that the wife could not be expected to live with him. The Court of Appeal agreed with the decision of the first instance judge and the case was taken to the Supreme Court.

The Supreme Court also unanimously rejected Mrs Owens’ appeal in light of the previous decisions, but the judges expressed that the case ‘generates uneasy feelings,’ calling on Parliament ‘to consider’ a reform of the law.

Currently in England and Wales, if you do not wish to cite reasons for the divorce, you must wait two years if both parties consent to the divorce or, alternatively, wait five years if the other party does not consent to a divorce. For couples, waiting this long for a divorce is impractical and instead, they have no option but to rely on the other party’s unreasonable behaviour or adultery. This can sometimes create unnecessary animosity for the parties and add emotional stress at a difficult time. However, until there is a change in the divorce procedure, the legal position remains.

Please rest assured at Paul Robinson Solicitors, we will guide you with the process and ensure that your case is dealt with sensitively to enable you to reach a resolution. We offer a fixed fee initial consultation for you to discuss matters and understand the options available to you. If you would like to book an appointment at either our Westcliff, Benfleet or Billericay offices, please contact the Family Department on 01702 338388 or 01277 500123.