Time for constructive divorce

Time for constructive divorce

Family analysis: Nigel Shepherd, national head of family law at Mills & Reeve and national chair of Resolution, explains the reasons behind Resolution’s successful application to intervene in the Supreme Court appeal in Owens v Owens, and plans for the no fault divorce campaign going forward.

Resolution has been given permission to intervene in the Supreme Court appeal in Owens v Owens – what would be your ideal outcome?

Ideally, Mrs Owens would be given her divorce. The reason we believe Resolution succeeded in its application to intervene was that it did not simply call for reform, but argued that the existing law could be interpreted to allow the Supreme Court to overturn the decision of the Court of Appeal. On a fundamental level, whether or not Mrs Owens succeeds on appeal, the campaign for no fault divorce will be bolstered.  If she wins, the fact that she has had to go all the way to the Supreme Court to obtain a divorce is patently nonsensical. The legislation will remain unchanged, fault will still be a basis for divorce and divorces would still be capable of being defended. If Mrs Owens loses her appeal and the marriage is kept alive, when even the trial judge agreed that the marriage had broken down irretrievably, then that would highlight even more starkly the injustice inherent in the current law.

What limitations are there as to the role of the Supreme Court in relation to the existing law and Owens?

At the Four Jurisdictions Family Law Conference 2018, Lady Hale stated the obvious, ie that the courts cannot make law, they can only interpret it. The limitations for the Supreme Court are those of any appeal – that the appeal court would have to find that the decision in the lower court was wrong in law, not just that the appeal court itself would have made a different decision. The judge at first instance in Owens found that he did not believe that the reasons given in the petition were the reasons for the breakdown of the marriage, and it is always difficult to overturn a finding of fact on appeal.  I would anticipate that if the Supreme Court does uphold the Court of Appeal decision, it will take the opportunity to stress the need for the law to be reformed, as did the Court of Appeal in its judgment (Owens v Owens [2017] EWCA Civ 182, [2017] All ER (D) 23 (Apr)).

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