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Divorce and the Current “Blame Game”

The Supreme Court delivered their judgement on the divorce case of Owens v Owens on 25th July 2018 and unanimously dismissed Mrs Owens’ appeal.
This case concerned the relevant part of the Matrimonial Causes Act 1973, which enables a spouse to obtain a divorce when a marriage has irretrievably broken down, on the basis that the other party has behaved in such a way that they cannot reasonably be expected to live with them.

Background

Mr and Mrs Owens married in 1978 and have grown up children. In February 2015 the parties separated when Mrs Owens left the matrimonial home. In May of that year Mrs Owens issued a divorce petition, which is the subject of the current proceedings. It was on the basis that the marriage had irretrievably broken down, and the fact that she relied on was that Mr Owens had behaved in such a way that she could not reasonably be expected to live with him. The particulars of alleged unreasonable behaviour were drafted in mild terms. Mr Owens defended the proceedings arguing that the marriage was largely successful.
In October 2015 the Court granted Mrs Owens permission to amend her petition so as to expand her allegations of behaviour. Mrs Owens amended her petition so as to include 27 individual examples of Mr Owens being moody, argumentative, and disparaging her in front of others, but at the one-day hearing subsequently, her barrister only focussed on a few of these.
The Judge decided that whilst the marriage had broken down, the alleged behaviour particulars relied on were exaggerated and flimsy. As such, the court ruled that Mrs Owens had not met the appropriate legal test and her petition for divorce was dismissed. Mrs Owens appealed against the decision, but the Court of Appeal dismissed it. She therefore appealed to the Supreme Court against the Court of Appeal’s decision.

Supreme Court Judgement

The Court unanimously dismissed the appeal of Mrs Owens. This means that she must remain married to Mr Owens for the time being, until the parties have been separated for 5 years. At that time a petition can be presented to say that the marriage has irretrievably broken down, and the fact she can rely on is that they have been separated for 5 years.

The Law

There is only one ground for divorce and that is that a marriage has irretrievably broken down. The Court can only rule this if the Petitioner establishes one of 5 facts, namely: adultery, unreasonable behaviour, desertion, 2 years separation with the consent of both parties, or 5 years separation.
When applying the relevant law when a petition is based on unreasonable behaviour the Judge must consider:

  1. The allegations of behaviour, to determine what the Respondent did or did not do;
  2. To gauge the effect which the behaviour had on this Petitioner in light of all the circumstances in which it occurred; and
  3. To make an assessment as to whether, as a result of the Respondent’s behaviour and in the light of its effect on the Petitioner, the Petitioner can reasonably be expected to live with him.

Unfortunately for Mrs Owens, based on the way the evidence was presented, the Supreme Court could not interfere at this stage and as such, had no other option available to them than to dismiss the appeal. Interestingly though, the majority did invite Parliament to consider replacing a law which denies Mrs Owens a divorce in the present circumstances.
Sally Robinson, Partner in our Family Team comments: “There has been a wave of support recently to update what many consider to be out of date laws. The idea that one party has to “blame” the other for the breakdown in some way is thought to be unnecessarily provocative at what is already an extremely difficult time, if a divorce is sought within 2 years of the breakdown.  Resolution (an organisation that believe in constructive and non-confrontational approach to family law matters), have been campaigning for the laws surrounding divorce to be changed. They believe divorce is difficult enough and the legal requirement to assign blame makes it harder for couples to reach an amicable agreement.  In a recent survey of Resolution members, over 90% agree that no fault divorce should be available to separating couples.”
So, is the invite from the Supreme Court Judges the push that is needed to replace the current unsatisfactory process? We will have to wait and see.  That does not help Mrs Owens in the meantime though.

If you require any Family Law advice contact our Specialist Team on 0800 088 6004.