Owens v Owens – urgent need for ‘no fault’ divorce?

In March this year the Court of Appeal handed down its decision in the Owens v Owens case, which has been the topic of much debate.

Mrs Owens wished to divorce Mr Owens (39 year marriage) and submitted a Divorce Petition to the Courts on the basis of Mr Owens unreasonable behaviour. Mr Owens defended that Petition. The Judge at first instance reviewed the 27 allegations of unreasonable behaviour in her Petition, and refused to grant the divorce on the basis that Mrs Owens claims were examples of “minor altercations of the kind to be expected in a marriage”.

Mrs Owens appealed the Judge’s decision, and her case was heard by the Court of Appeal. The Court of Appeal upheld the Judge at first instance’s decision and dismissed Mrs Owens appeal, finding that the law had been applied correctly. This meant that Mrs Owens was not granted a divorce, and the couple remain married.

Mrs Owens has since lodged an application for permission to appeal with the Supreme Court.

This case has raised a number of questions regarding the current divorce legislation. It has been argued that the law as it stands no longer reflects modern day realities. For a number of years, many practitioners have been calling for the introduction of ‘no fault’ divorces, in particular Resolution (a national organisation of family lawyers committed to non-confrontational divorce, separation and other family problems). Nigel Shepherd, the chairman of Resolution, says that this case “underlines the urgent need for no-fault divorce”.
On this topic, Resolution state;

At the moment, the only ground for divorce is that the marriage has broken down irretrievably. This can be proved in a number different ways but it is not possible for a couple to get a divorce without blame unless they have been separated for at least two years. For many, waiting two years to sort out their finances rules out this option. This means that they must record details either of their partner’s adultery or their unreasonable behaviour in order to proceed with the divorce, making an already difficult and distressing process even harder. This seems particularly pointless given that the reasons for divorce make no difference to any financial settlement or children arrangement – they are simply to allow the divorce to proceed to the next stage.

Further, if one spouse will not consent to a divorce after 2 years separation, the only remedy available is 5 years separation. This wait can be disproportionate, particularly in a short marriage.

Resolution are campaigning for reform in order to reduce conflict and support separating couples to resolve matters amicably. They have called on successive Governments to change the law and introduce ‘no fault’ divorce, as the reasons for marriages breaking down are often complex and rarely will both spouses agree on them. ‘No fault’ divorce is widely supported both by practitioners, and the public.

It remains to be seen whether the next Government will address this issue. Labour have pledged to introduce ‘no fault’ divorce in their manifesto, but they are the only party to address the issue.

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