This time last year we wrote about the beginning of Mr and Mrs Owens’ journey to the highest court in the UK. Mrs Owens was hoping to be granted a divorce from her husband; something that she had been denied because of a failure to meet the necessary threshold.
The Supreme Court has now spoken, delivering a judgment that has rallied further calls for changes to the divorce system.
Facts – a snapshot
Mr and Mrs Owens had been married for 37 years when she filed for divorce. They lived separately at that point and she believed that the marriage had irretrievably broken down, citing her husband’s behaviour, which included his being moody, argumentative and disparaging. Mr Owens had defended the divorce petition.
Before a divorce will be granted, a marriage must be shown to have irretrievably broken down. There are various ways of demonstrating this. These include adultery, desertion, and separation (either for two years when the parties consent, or five years if one party does not consent). Mrs Owens opted for the fifth: she said that her husband had behaved in such a way that she could not reasonably be expected to live with him (‘unreasonable behaviour’).
The Courts’ decisions
The family court that heard the case initially found that, although the marriage had broken down, the behaviour of which Mrs Owens complained was, in effect, part and parcel of married life. The Judge was not convinced that Mr Owens had behaved in such a way that his wife could not reasonably be expected to live with him.
The Court of Appeal upheld that decision, refusing to interfere with the original Judge’s conclusions which, it said, had been correctly reached.
The Supreme Court dismissed Mrs Owens’ appeal; it was not appropriate to intervene in the decision-making that had taken place. The first instance Judge had reached his conclusions, and the Court of Appeal had dismissed Mrs Owens’ complaints about that judgment.
So, no divorce for Mrs Owens just yet. However, the inadequacy of a situation in which a person who wants to remove herself from an unhappy marriage is unable to do so without having to wait a number of years has not gone unnoticed. The case has fuelled further calls for the introduction of ‘no-fault’ divorce; a mechanism of obtaining a divorce without having to lay blame at one party’s door.
As a family lawyer, I see many cases of marriages that just haven’t worked. Sometimes it is because of fault on both sides; sometimes through no fault at all. However, the idea of blame is very much alive and kicking because the current system (in which unreasonable behaviour is the most commonly-cited reason for irretrievable breakdown) more often than not requires it. This presents a number of challenges, and it’s often a case of working out what to include in the divorce petition and what to leave out.
As the Owens case highlights, there is no matrix to refer to when it comes to deciding what behaviour is, and is not, ‘unreasonable enough for a divorce’. While the most serious kinds – domestic violence, for example – will meet the threshold, the divorce system makes it far more difficult to succeed in arguing that the cumulative effects of annoyances, episodes of disrespect, or other perhaps anodyne gripes, are enough to demonstrate that it is no longer reasonable for one person to continue living with the other. Behaviour that might be intolerable to a husband or to a wife will not necessarily be enough. It is a situation that calls for a careful balance between dredging up the right examples of suitably unreasonable behaviour, and adding yet another dose of toxicity to the divorce process.
The outcome of this case may be that practitioners now present stronger and more offensive behaviour petitions simply to ensure that their client can proceed with their divorce without risk of successful challenge. The sadness here is that prior to Owens, there was an understanding that the behaviour petition was a means to an end and with the family-centred approach of not actively raising tensions unnecessarily, behaviour petitions were tempered to be ‘strong enough to succeed but not designed to cause offence’. It is a shame that this decision will put the adversarial approach back on the agenda, which ultimately affects the related children and financial proceedings. However, it is for Parliament to change current divorce laws (the Ministry of Justice has confirmed reform is being discussed) and introduce a no-fault based approach as recommended by Resolution.