Forced to remain married - What does the Owens case mean for you?
There has been a lot of media attention surrounding the divorce case of Mr and Mrs Owens.
Tini Owens sought to divorce her husband of 39 years, Hugh Owens, claiming he had behaved unreasonably in their marriage. Mr Owens defended the divorce and after a lengthy legal process, the case ended up at the Supreme Court which recently unanimously rejected Mrs Owens’ appeal.
The Supreme Court dismissed Mrs Owens’ appeal and, in doing so, rejected her divorce petition, as they felt she had not evidenced that Mr Owens had behaved in a way which a “right thinking” person would consider unreasonable.
A long wait
Mrs Owens will now need to wait until 2020 before she can commence divorce proceedings, at which time she can then seek a divorce on the grounds of five years separation, as it seems unlikely that Mr Owens will agree to a divorce before this. It also means that Mr and Mrs Owens will be unable to resolve their financial claims against each other until the future divorce proceedings take place.
Upon delivering the judgement, the majority of the Supreme Court Justices invited Parliament to consider replacing a law which currently denies Mrs Owens a divorce.
A call for change
The decision has caused some concern amongst family lawyers. The current divorce law of England & Wales provides that there is one ground for divorce, which is the irretrievable breakdown of the marriage but this needs to be proved by one of the following:
- that one party has committed adultery and the other finds it intolerable to live with them
- that one party has behaved in such a way that the other cannot reasonably be expected to live with them (The Behaviour Petition)
- that one party has deserted the other for a continuous period of at least two years
- that the parties have lived apart for a continuous period of at least two years and they mutually agree to the divorce;
- that the parties have lived apart for a continuous period of at least five years immediately preceding the presentation of the petition.
In cases where there has been no adultery and where the parties have not been separated (or deserted) for the requisite period, the petitioner could only proceed with a divorce if they could prove the Behaviour Petition. Petitions on the grounds of behaviour account for the majority of issued petitions in England & Wales.
For many years the practice had been to try and avoid inflaming the situation and so allegations made within a Behaviour Petition were often watered down so as to avoid causing offence. Several judges also took the view that they did not want to see the parties “washing their dirty linen in public” and so they accepted the practice. The position has now changed and reverted to a very strict interpretation of the relevant statute, being the Matrimonial Causes Act 1973.
Watch this space
There has been a widespread call for no-fault divorce so that one person does not need to blame the other. Until a change takes place, Behaviour Petitions will need to be carefully considered to ensure that the wording is sufficient to satisfy the court. The implications for a poorly drafted petition can be significant as it might mean the petition is rejected and, if so, the parties will remain married and their financial claims against each other will remain unresolved.
If you are in the process of separating from your spouse and would like to know more about the grounds for divorce, please contact Natalie Suret or Stephen Smith.
Natalie Suret, Solicitor, Family.
Stephen Smith, Partner, Family.
Published: 1 Aug 2018