25 July 2018

By Alison Hawes and Julia Davies

In April 2017 we reported on the case of Owens v Owens, in which the Court of Appeal had upheld the decision of the first instance judge to refuse to grant a divorce decree, despite finding the marriage to be over. We looked at how the drafting of divorce petitions is approached by specialist family lawyers and the argument for a reform in the law.

Today’s decision to dismiss the appeal has made it clear that now is the time for such reform. The current law is at odds with the flexibility and freedom offered to couples in modern society. It cannot be right that the state can intervene to apply an objective test as to whether a marriage is over, and Parliament must legislate to rectify this situation.

The case

Mr and Mrs Owens separated in February 2015 after a long marriage. Mrs Owens petitioned for divorce on the basis of Mr Owens behaviour and this led to him defending the petition. There was a finding of fact that the marriage had broken down. However, the Matrimonial Causes Act 1973, section 1(2)(b), required Mrs Owens to establish that Mr Owens had ‘behaved in such a way that [she could not] reasonably be expected to live with the respondent’.

At first instance, Judge Tolson QC dismissed the petition, ruling that Mr Owens’ behaviour as described was not sufficient to satisfy the requirements of the legal test. The Court of Appeal upheld the judgment, and the Supreme Court has today unanimously agreed. Mrs Owens will now have to remain married until February 2020, at which point the couple will have been separated for five years. At this point, Mrs Owens can rely on their separation for five years without requiring Mr Owens’ consent.

The legal argument

The legal argument in this case has centred on the interpretation of section 1(2)(b) of the Matrimonial Causes Act 1973. Mrs Owens argued that the test to be applied was subjective and that it was the impact of Mr Owens’ behaviour on her that mattered. However, each court disagreed. The Court of Appeal, quoting the case of Livingstone-Stallard v Livingstone-Stallard [1974] Fam 47, said that the question to be considered was:

‘Would any right-thinking person come to the conclusion that this husband has behaved in such a way that this wife cannot reasonably be expected to live with him, taking into account the whole of the circumstances and the characters and personalities of the parties?’

This is an objective question in which the fact of whether an individual wishes to remain married to their spouse is irrelevant.

The legal impact of today’s judgment

Today’s judgment highlights the damage that may potentially be caused at the very start of proceedings by the requirement that one spouse must make allegations of behaviour against the other. Lord Wilson commented that ‘Such allegations often inflame their relationship, to the prejudice of any amicable resolution of the ensuing financial issues’. He quotes the advice of the Law Society that ‘petitioners should be encouraged only to include brief details in the statement of case, sufficient to satisfy the court’. He goes on to discuss comments contained within No Contest: Defended Divorce in England and Wales, a publication of the Nuffield Foundation which states ‘the family justice system is predicated on settlement and compromise’. Drafting a divorce petition is an art, rather than a science, and knowing the details to include to meet the test in section 1(2)(b) without generating hostility, is a skill which specialist family lawyers develop with experience.

However, the judgment emphasises that referring to the ‘unreasonable behaviour’ petition is incorrect. The subsection requires the expectation of continued co-habitation as husband and wife to be unreasonable rather than the behaviour itself. This clarification and emphasis in the judgment will no doubt see a fundamental change to the way in which petitions are drafted in future. It has been common practice that one party will agree that just enough information about their behaviour be inserted into the petition to enable it to meet the threshold of the court. Specialist family lawyers have long used this provision to obtain divorce ‘by consent’ in marriages in which the couple have grown apart, as appears to be the case here. It is, in fact, questionable as to whether this divorce petition would have failed had Mr Owens not defended it, a point on which Lady Hale reflects in the judgment. Going forward, section 1(2)(b) may not be as easily used to petition for a divorce where there is consent between the couple, as courts will follow by ensuring that there are sufficient behavioural reasons that the expectation of continuing a marriage be unreasonable. This emphasises a gap in the legislation, which this judgment invites Parliament to remedy.

A call for reform

As a result of the Supreme Court's findings, Mrs Owens remains stuck in a marriage that is over. She cannot get a financial settlement via a Court Order and remains tied to a man who she does not want to be with for a further number of years. The financial cost and emotional toll of the three hearings cannot be over-estimated. How can it be just that we have a divorce process that is at odds with the flexibility of modern society? Many couples cohabit without marrying, and as family lawyers we warn against the potential financial pitfalls of such action. Yet choosing to marry carries the risk that the courts can will intervene to insist you remain married even after you perceive your marriage to have broken down.

Lord Wilson has today suggested that ‘Parliament may wish to consider whether to replace a law which denies to Mrs Owens any present entitlement to a divorce in the above circumstances’. This aligns with the call of the majority of specialist family lawyers for Parliament to legislate for no-fault divorce. Lady Hale comments that she has found this to be ‘a very troubling case’, going on to say; ‘It is not for us to change the law laid down by Parliament’. The Nuffield Foundation publication No Contest: Defended Divorce in England and Wales rightly comments that ‘trying to apportion blame is a fruitless and inherently non-justiciable task and that defence is futile where one party has decided that the marriage is over’. Shouldn’t there be an avenue for new legislation to bring divorce law in line with the modern world?

How can Burges Salmon help?

If you have any questions on the issues raised in this article, please contact Alison Hawes or your usual Burges Salmon contact.

Key contact

Alison Hawes

Alison Hawes Consultant

  • Family Law and Divorce
  • Private Client Services 
  • Food and Farming 

Subscribe to news and insight

Burges Salmon careers

We work hard to make sure Burges Salmon is a great place to work.
Find out more