by Emily Morris
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Owens v Owens: Should the family laws be modernised ?

by Emily Morris

In today’s blog, we take a look at a recent family law case that has been dominating headlines for all the wrong reasons. We are, of course, referring to the unusual case of Owens v Owens where, despite His Honour Judge Tolson QC finding the marriage had broken down, he refused to grant Mrs Owens’ petition for a divorce based on her husband’s behaviour. This has raised uncertainty surrounding the requirement to demonstrate the need for a divorce because, despite being married for 39 years, Mrs Owens claims she is now trapped in a ‘loveless and desperately unhappy’ marriage on account of the court’s ruling.

In March 2017, The Court of Appeal found Mrs Owens should not be granted a divorce because a ‘wretchedly unhappy marriage’ is not a sufficient ground for divorce. Mrs Owens’ barrister, Phillip Marshall QC, claimed it is ‘extremely unusual’ for a court to dismiss a divorce petition and judges should consider the ‘cumulative effect’ of Mr Owens’ behaviour.  However, whilst Mrs Owens evidenced 27 allegations in support of her petition, including reprimanding her in front of their housekeeper, HHJ Tolson held Mr Owens’ behaviour amounted to ‘minor altercations of a kind to be expected in a marriage’ and Mrs Owens had been ‘more sensitive than most wives’. With limited options available to her, Mrs Owens must now wait to be separated from Mr Owens for five years before legally dissolving her marriage. This case has added weight to the demand for a ‘no-fault’ divorce process with Lady Justice Hallett stating ‘It is for Parliament to decide whether to (…) introduce ‘no fault’ divorce on demand’.

A ‘no fault’ divorce would eradicate the five ‘facts’ that are currently required under the Matrimonial Causes Act 1973 to form a basis for a divorce: namely adultery; unreasonable behaviour; desertion for a period of two years; with consent after two years’ separation or five years’ separation. In Mrs Owens’ case, a ‘no fault’ divorce would allow her to divorce Mr Owens without the need to place any blame on Mr Owens. Arguably, there is a significant need for a ‘no fault’ divorce system because if a party is already willing to petition the Court of Appeal for a divorce, the differences in the marriage are irreconcilable. As the present system is rigid, a ‘no fault’ divorce system could provide judges with the flexibility and freedom to grant divorces without needing to incriminate the past.

In place of the current system, Resolution (the body of family lawyers) urges a single basis for establishing an irretrievable breakdown where one or both parties can declare their marriage has broken down and if, after waiting six months, either or both hold the same view then the divorce would be granted. This eliminates the need for mutual consent and any party to face blame. Only last November, 150 Resolution members lobbied parliament to introduce their form of a ‘no fault’ divorce.

There have already been several attempts by Parliament to introduce a ‘no-fault’ divorce. In 1996, the Government strived to introduce ‘no-fault’ divorce but the legislation was repealed in 2001 after obligations for parties to attend ‘information meetings’ to encourage reconciliation proved impractical. Again in 2015, Richard Bacon presented a private members’ bill recommending a ‘no-fault’ divorce system with parties waiting at least a year but it failed to get a second reading. Since 2015, only the Labour Party has made any attempts to illuminate discussion on a ‘no-fault’ divorce system. Some say that Parliament has ignored the need for a ‘no-fault’ divorce system because critics claim that it might make ending a marriage too easy.

Several of our European neighbours have already introduced a ‘no fault’ divorce system. In particular, Germany has had a ‘no fault’ divorce system since 1977 as judges can grant a divorce if one or both parties express that their marriage has broken down beyond the point of irreconcilability. Taking heed to the critics, it should be noted that Germans are staying married for longer as divorce rates are continually decreasing year on year.

In the 21st century, is it ethically and morally right that Mrs Owens is forced to remain in a marriage against her will?

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