‘No Fault Divorce’ – The Impact of Owens v Owens

On 25 July 2018, the UK’s highest Court dismissed Tini Owens’ appeal of a lower Court’s refusal to grant her divorce, despite the fact that the Judge had rules her marriage to Hugh Owens had broken down.

Tini Owens, who had been married to her husband for 39 years, applied to the family Court for a divorce, based on unreasonable behaviour. Mrs Owens 27 allegations about the way Mr Owens treated her, in particular his “continued beratement” of her, his “insensitive … manner and tone” and that she was “constantly mistrusted” and felt unloved.

Mr Owens opposes the divorce, as he believes they still had a “few years” to enjoy together in life, even if that meant living next door to each other.

Judge Robert Toulson QC refused to grant a divorce petition on the basis of Mrs Owens’ allegations, saying that they were “minor altercations of the kind to be expected in marriage”.

Mrs Owens therefore took the case to the Court of Appeal where the Judges, led by Sir James Munby, the President of the Family Court in England and Wales at the time, analysed the case and upheld the original ruling. Sir James Munby stated that “[the Court could not] interfere with Judge Toulson’s decision and refuse the wife the decree of divorce she sought.” It was felt that Judge Toulson had correctly concluded that the marriage had not legally irretrievably broken down.

Sir James said: “We cannot interfere with Judge Toulson’s decision and refuse the wife the decree of divorce she sought.” He said Judge Toulson had correctly concluded that the marriage had not “in law” irretrievably broken down.

Lord Wilson, with whom Lord Hodge and Lady Black agreed, said “there was no denying that Mrs Owens’ appeal generates uneasy feelings”. But he said, “uneasy feelings are of no consequence in this Court, nor indeed in any other appellate Court”.

Lady Hale, Supreme Court president and Lord Mance gave concurring judgments. Hale said she found the case “very troubling” but said “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”.

Lady Hale further stated that were Mrs Owens to continue to live apart from her husband until 2020 “he would surely have no defence to a petition’ as they would have lived apart for five years. Lord Wilson said. “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” he added.

Will reform be forthcoming in light of these comments?

The ruling prompted renewed calls from family solicitors for divorce laws to be reformed so that fault does not have to be proved.

Mrs Owens’ barrister, Phillip Marshall QC commented on the judgment that “it is extraordinarily unusual in modern times for a Court to dismiss a petition for divorcee. Mrs Owens is now a ‘locked in’ wife. She cannot get divorced unless the husband changes his mind and agrees”.

Mrs Owens contended that she had been left in a “wretched predicament” and was locked in a “loveless and desperately unhappy” marriage.

Mrs Owens remains in a loveless marriage due to the Government’s refusal to reassess the law on No Fault Divorce.

A spokesperson for the Ministry of Justice said the department is “carefully considering the implications’ of the judgment as the current divorce system “creates unnecessary antagonism in an already difficult situation”.

Family law group Resolution, which intervened in Owens v Owens, says that since the unsuccessful attempt to introduce no-fault divorce in the 1996 Family Law Act, more than 1.7 million people have cited adultery or unreasonable behaviour in their divorce petition. This is not conducive to ensuring separated couples are able to resolve issues surrounding finances and children amicably.

The No Fault Divorce Bill 2015-16 was passed through Parliament on 13 October 2015 under the ten-minute rule, but the Bill was unsuccessful. Since the Owens’ verdict, the Government are motivated to re-examine the Bill.

No Fault divorce will not make divorce easier, nor will it make a divorce more accessible, but it will allow couples to part amicably and will have more consideration for children involved.

Currently in England and Wales it is only possible for parties to obtain a divorce in the first two years after separation based on adultery or behaviour (the latter was used in the Owens’ case.

After two years of separation, if both parties agree a divorce can be obtained on two years separation, however this requires both parties to agree to this. If one party does not agree, the couple must be separated for at least five years before a divorce can be obtained.

The need for such reform is clear, with Family Law Weekly reporting that “14 percent [of petitioners] have exaggerated about adultery and 13 per cent about the length of their separation” in order to obtain a divorce. If couples are willing to falsely exaggerate how bad their marriage is to succeed in getting a divorce, then Family Law legislation needs to modernise.

The Owens V Owens case highlights the vagaries and inadequacies in law of the fault-based divorce. If it gets to the point that a party is willing to go to the Court of Appeal to seek a divorce, the differences within the marriage are clearly irreconcilable. Judges’ hands are tied by divorce laws which in the Owens’ case, has resulted in someone being compelled to stay married against her will.

The ruling in the Owens’ case demonstrates that currently parties must take a careful approach to divorce proceedings; petitions must be drafted in such a way so as to satisfy the legal requirements, but also to ensure that the Respondent does not contest the details contained in the Statement of Case. Should this occur, proceedings can become extremely complicated and expensive for all involved.

It is therefore important that petitioners consult expert solicitors to obtain a divorce swiftly and in the most cost-effective manner possible. We offer a fixed fee for representation in respect of an uncontested divorce, up to the decree nisi stage, of £750 plus VAT. The first 20-minute consultation whereby we can discuss your case and advise you as to the next steps is completely free.

Contact our expert team on 01865 246991 to book your free initial consultation.

Heulwen Everton (SMQ Legal Services) and Kirsty Craven (Oxford Brookes University)

Leave a Reply

Your email address will not be published.