Major setback for divorcing couples – 1 of the most significant cases

Last week, in the case of Owens v Owens, the Court of Appeal dismissed the appeal of a wife, Tini Owens, seeking to divorce her husband of 39 years, Hugh Owens, for his unreasonable behavior after he successfully defended the divorce petition. For Tini Owens, the recent decision by the Court of Appeal means that she may have to remain married to her husband until a separation period of 5 years has elapsed.

In his judgment, Sir James Munby President of the Family Division stated “It may be of little consolation to the wife but she is not totally without remedy under the present law. If she waits until February 2020, assuming that she and her husband are still alive, she will, seemingly, be able to petition in accordance with the Act”

Currently, the only ground for divorce in English law, is that the marriage has irretrievably broken down. The court cannot hold that the marriage has broken down irretrievably unless the petitioner satisfies the court of one or more of five facts, three of which are fault based (adultery, behaviour, desertion). Two of the facts relate to periods of separation – two years if both parties consent, and five years without consent. Under the current system, the divorce process means that an element of ‘fault’ for the breakdown of the marriage will have to be apportioned to at least one of the parties to the divorce in order for the divorce petition to progress outside of two or five years separation.

Many couples who agree that their marriage has broken down will discover that the only way they can divorce swiftly and move on with their lives is for one to accuse the other of unreasonable behavior, which can lead to unnecessary conflict and hostility.

The recent decision to refuse Tini Owen’s appeal could strengthen calls for Parliament to consider amending the law to introduce no-fault divorce.  Resolution, an organization of 6,500 family lawyers and other professionals in England and Wales, who campaign for improvements to the family justice system have long campaigned for a ‘no-fault’ divorce system to be introduced into our legislative system. In the wake of the decision in Owens v Owens Resolution Chair, Nigel Shepard said “This is why we are today repeating our call on the government to change the law and introduce no fault divorce.” A ‘no fault’ divorce system could allow couples to divorce and state the marriage has irretrievably broken down, whilst removing the element of blame, ie, adultery, behavior and desertion that one or both parties must, under the current system cite.

In light of the recent decision in Owens v Owens, petitions based on the fact of behaviour may now need to set out even more detail about the Respondent’s behaviour which may lead to more conflict between the divorcing parties. It might also result in couples and individuals like Tini Owens being forced to stay in an unhappy marriage until the five year period of separation is satisfied.
Surely it is time to stop playing the blame game. The decision in Owens v Owens could be the push that is needed for Parliament to revisit our current divorce legislation all together.

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If you need advice about divorce or on the breakdown of a long term relationship, our specialist team of family solicitors can help. Please contact Louise Law in the family department who can arrange an appointment with one of our experts.