The case of Owens v Owens has been of special interest to many and involved the Court refusing a wife’s application to divorce her husband after 39 years of marriage.
Background of the case
The parties were married for 39 years and had two children together. The wife petitioned for a divorce on 6 May 2015 on the grounds that the marriage had irretrievably broken down and that the husband had behaved in such a way that she could not reasonably be expected to live with him.
In her particulars, the wife raised twenty-seven allegations evidencing the fact that their marriage had, in her view broken down, irretrievably.
In the majority of cases, a divorce petition proceeds undefended and the Court generally accepts the statements made in the petition. However in this case, the husband contested the particulars and the fact that the marriage had broken down, despite the fact the parties were living apart.
The Judge was not satisfied that the allegations were sufficient to demonstrate that the husband’s behaviour was unreasonable, and in fact said that the wife’s allegations of unreasonable behaviour were ‘at best flimsy’ and ‘an exercise in scraping the bottom of the barrel’.
The wife had failed to meet the statutory test and prove that within the meaning of section 1(2)(b) of the Matrimonial Causes Act 1973 her husband ‘behaved in such a way that she cannot reasonably be expected to live with him’. As such the Judge refused to grant the wife a decree nisi of divorce and dismissed the petition.
The wife appealed the dismissal of her application which was dismissed by Order of the Court on 24 March 2017.
The wife appealed the Order of 24 March 2017, and on 25 July 2018 the Supreme Court upheld the previous decisions by the original trial Judge and Court of Appeal meaning that she must remain married until 2020.
Ground for divorce
In the jurisdiction of England and Wales there is only one ground for divorce which is the ‘irretrievable breakdown of the marriage’.
In order for the Court to rule that the marriage has broken down irretrievably, the party which Petitions must establish one of the following five facts:
- Unreasonable behaviour
- Two years’ separation with the consent of the Respondent
- Five years’ separation with no consent required.
If one of the facts can be established, there is a presumption that the marriage has broken down irretrievably.
Because the two no-fault facts require the parties to have separated for a period of time, if an individual wishes to begin the process immediately they must rely on one of the fault based facts, ‘unreasonable behaviour’ being the most common.
What then can constitute unreasonable behaviour?
There is no set rule to establish what qualifies as ‘unreasonable behaviour’.
In the Supreme Court hearing, Lord Wilson stated ’the question posed by the subsection is more narrow than whether the petitioner cannot reasonably be expected to live with the respondent; it is whether the respondent’s behaviour has been such that the petitioner cannot reasonably be expected to do so’.
The Court therefore must have regard to the entire history of the marriage, the personalities of the parties and the cumulative effect of the behaviour alleged.
In the Court of Appeal hearing, Lady Justice Hallett stated ‘what may be regarded as trivial disagreements in a happy marriage could be another piece of salt in the wound in circumstances of an unhappy marriage’.
In the Supreme Court hearing, Lord Wilson stated ‘Family lawyers are well aware of the damage caused by the requirement under the current law that, one spouse must make allegations of behaviour against the other. Such allegations often inflame their relationship, to the prejudice of any amicable resolution of the ensuing financial issues and to the disadvantage of any children’.
Solicitors involved in drafting petitions have therefore tended to use anodyne terms in order to minimise acrimony whilst ensuring that the particulars of behaviour meet the statutory threshold. As such, there tends to be a very low percentage of divorces that are defended and even fewer which proceed all the way through to a contested hearing to determine if those allegations are proved and satisfy the test required.
Increasingly parties have agreed the wording of the particulars of behaviour in advance which has resulted in the majority of divorces being able to progress without acrimony, even if they are not without fault.
What is the alternative?
This ruling has strengthened the call within the family law community for law reform to a non-fault based system of divorce.
Family Judges including Mr Justice Munby and Lady Justice Hale, along with many solicitors have backed the prospect of a no-fault divorce. In fact, the Solicitors family group Resolution, have proposed that a divorce should be as straightforward as one or both parties making a formal declaration that the marriage has broken down, and if after waiting for a period of six months both parties hold the same view, the divorce is granted.
In the Supreme Court hearing, Lady Hale referred to the case as ‘very troubling’ but stated ‘it is not for us to change the law laid down by Parliament - our role is only to interpret and apply the law that Parliament has given us’.
Unfortunately, until there is a no fault option for divorce, a party petitioning immediately on separation must be able to demonstrate that they cannot reasonably be expected to live with their spouse. The bar has somehow inadvertently been raised. Simply feeling unhappy, discontent or even disillusioned in a marriage may no longer be enough to prove the irretrievable breakdown of a marriage.
Judicial scrutiny will inevitably heighten as a result of this case, and as such there is a greater need for expert advice to establish what should be included in the petition, in order to avoid the unreasonable behaviour relied on being considered reasonable in the context of the parties’ marriage.