By Emily Morris and Neil Graham
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Owens v Owens: when is behaviour unreasonable enough to warrant a divorce and is it time for reform?

By Emily Morris and Neil Graham

On 25th July, the Supreme Court delivered its much anticipated judgment in the appeal brought by Mrs Owens against the earlier Court of Appeal ruling that her husband’s behaviour throughout a long marriage was not sufficiently unreasonable that she could not be expected to live with him.

In order to obtain a decree of divorce under the current law in England and Wales a party must show that a marriage has broken down irretrievably as a result of one the following five facts being proved:

– One of the parties has committed adultery and it is intolerable for the other party to live with them;

– One of the parties has behaved in such a way that the other party cannot reasonably be expected to live with them;

– One of the parties has deserted the other for a continuous period of at least two years;

– The parties have lived apart for a continuous period of at least two years and the other consents to a decree;

– The parties have lived apart for a continuous period at least five years.

Having originally been denied a decree of divorce from her husband of 40 years at the first instance and subsequently at the Court of Appeal. Mrs Owens was seeking to persuade the Supreme Court that she should be granted a decree of divorce stemming from her husband’s behaviour and that a novel issue of interpretation of the law needed to be considered.

At the original hearing at the first instance Mrs Owens argued that the marriage had broken down and cited 27 allegations of her husband’s ‘unreasonable behaviour’. Mr Owens refused to accept that the marriage had broken down as a result of his behaviour but that, if it had, it was as a result of Mrs Owens’ affair or the fact that she was bored.

The Supreme Court gave some clear guidance both on the fact that the behaviour does not necessarily have to be the cause of the marriage breaking down irretrievably and that a threefold enquiry is necessary as follows:

– what did the party either do or not do?

– what effect did their behaviour have upon the other party in the light of their disposition and all the circumstances? and

– would it be unreasonable to consider that the other party should have to live with them?

The Supreme Court concluded that Mrs Owens’ case was ultimately too weak to show that the original trial Judge had fallen into error in deciding that it was not unreasonable to expect her to continue to live with her husband.

This is a slightly unusual case since there was some suggestion that the way in which the initial case had been prepared for trial did not provide the initial Judge with an opportunity to evaluate the cumulative effect of incidents throughout the entire marriage upon Mrs Owens.

Furthermore, although Lady Hale was of the view that the appeal should be allowed and the case tried again the prospect of this was not something which Mrs Owens relished.

Finally, the novel point of law which had initially piqued the interest of the Supreme Court was eventually conceded by Mrs Owen’s team during the course of the hearing.

Although Mrs Owens was ultimately not successful in her appeal to the Supreme Court she has, nonetheless, raised considerable awareness of the possibility for reform of the current statutory law and for the adoption in its place of “no fault” or “non conduct” based legislation.

The idea was originally raised by the Law Commission report in the early 1990s although this failed to make its way into Part II of the Family Law Act 1996.  The postponement of a subsequent Private Member’s Bill in 2015 and the subsequent General Election dealt a further blow to the possibility for reform.

In July this year, however, Baroness Butler-Sloss introduced The Divorce (etc.) Law Review Bill in the House of Lords. This Bill would require the Government to review the current laws governing divorce and to consider the implementation of a ‘No-fault’ divorce system. The Bill received its first reading in the House of Lords and is currently awaiting its second reading.

The Bill is the work of several legal professionals, including Professor Liz Trinder from the University of Exeter Law School whose research suggests that the current law is ambiguous, expensive to operate and creates unnecessary conflict for children.

The Divorce (etc.) Law Review Bill proposes a scheme whereby both parties could initially apply for a divorce with the result that a decree of divorce would be granted if either party had confirmed the application after a nine month period or once a period of nine months had elapsed if the application was initially made by only one of the parties.

Neil Graham, a Partner at Grayfords, comments:

“Until any reform to the statutory law takes place, in order to obtain a divorce the current law does still require a party to establish that the marriage has broken down irretrievably and that one of the five facts under the 1973 Act is made out.  It is important, therefore, to obtain specialist advice on how to go about dissolving your marriage in addition to how to resolve the financial aspects or any issues relating to children arising from a decree of divorce.  At Grayfords we not only have the ability to provide that advice but also to consider with you the various options, approaches and processes available in determining those issues in a way that is appropriate for you and which accommodates your concerns and preferences.”

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