Strengthening the call for divorce law reform - Owens v Owens [2018] UKSC 41

Strengthening the call for divorce law reform - Owens v Owens [2018] UKSC 41

Background

Mr and Mrs Owens married in 1978 and had two adult children. In February 2015 they separated. In May 2015, Mrs Owens filed a petition for divorce on the ground that the marriage had broken down irretrievably and alleging that Mr Owens had behaved in such a way that she could not reasonably be expected to live with him. At first instance, the judge held that the allegations of alleged unreasonable behaviour were, at best, flimsy, and further that Mrs Owens had exaggerated the context and seriousness of the allegations to a significant extent. The judge dismissed the petition on the basis that Mrs Owens had failed to prove, within the meaning of section 1(2)(b) of the Matrimonial Cases Act 1973, that Mr Owens had behaved in such a way that she could not reasonably be expected to live with him.

Mrs Owens appealed to the Court of Appeal, inviting the court to consider what level of fault had to be established to obtain a divorce and whether greater weight ought to be given to the wishes and feelings of a petitioner. Her appeal was dismissed by the Court of Appeal for reasons that included that the judge had applied the law correctly and on the evidence before him, and he was entitled to reach the conclusions that he did and he provided good reasons for them.

The wife appealed to the Supreme Court which dismissed her appeal.

Comment

The Supreme court may have dismissed Mrs Owens’ appeal by a narrow margin, but this remains a seminal case, raising a question for parliament on whether the law on fault-based divorce, which has been in place for nearly 50 years, remains ‘satisfactory’.

England and Wales trail other countries, such as Australia, Canada, Spain and Sweden, who have introduced no fault divorce, in many cases decades ago. Lord Wilson, who gave the leading judgment, was pertinent in his comments, noting the Supreme Court’s concerns over evidence, but also whether the current law properly reflects evolved social views.

The media focus is often on the divorce suit, which can be highly contentious in fault-based divorce, potentially damaging relationships and impacting children. But for many couples who chose to separate, divorce can be an amicable administrative process.

Cuts to legal aid, court closures and budget cuts have all placed additional pressures on the family justice system. More people than ever are representing themselves, and delays in the amount of time that the courts now take to process paperwork also increase the stress on divorcing couples. The law needs to be clear and aimed at reducing conflict rather than increasing it, so that families can focus on more important issues.

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About the author:

Geraldine is Head of LexisPSL Family. She was admitted as a solicitor in 1992 and was in practice for 15 years, most recently as a partner and head of the family team at Hart Brown, a large Surrey firm.

Geraldine writes for Butterworths Family Law Service and is a past editor of the Resolution Review. She has been published in the New Law Journal, the Law Society Gazette and the District Judges’ Bulletin as well as in the national press including the Times and the Telegraph.

When in practice she was a member of the Law Society Family and Children Panels, and an accredited Resolution Specialist with a focus on advanced financial provision and pensions. A past Resolution regional secretary and press officer, Geraldine also contributed chapters to the Resolution publications, International Aspects of Family Law (3rd Edition 2009) and The Modern Family (2012).