25 July 2018 | Comment | Article by Adrienne Donneky
The Supreme Court has today (25 July 2018) rejected the appeal of a wife, meaning that she must remain married for the time being to a husband who she wishes to divorce.
Mr and Mrs Owens were married in 1978 and have two adult children. Mrs Owens left the matrimonial home in 2015, and shortly afterwards issued a divorce petition alleging that the marriage had broken down irretrievably and that Mr Owens had behaved in such a way that she could not reasonably be expected to live with him. Mrs Owens cited several examples of Mr Owens’ unreasonable behaviour, such as disparaging comments he would make about her to family and friends. Mr Owens indicated that he intended to defend the petition and did not wish to divorce. This in itself is unusual; less than 1% of divorce petitions are defended.
The Judge who heard the matter refused Mrs Owens’ petition, finding that whilst the marriage had broken down, incidents relied upon by Mrs Owens had been exaggerated and Mr Owens had not behaved in such a way that she could not reasonably be expected to live with him. Mrs Owens appealed the decision to the Court of Appeal, who dismissed the appeal.
The Supreme Court has unanimously dismissed Mrs Owens’ appeal, and found that whilst there were elements of the first judge’s analysis which they did not agree with, his ruling should be upheld. Whilst the implications of the judgment gave them “uneasy feelings”, they remained bound by the current legal framework.
The decision, whilst disappointing for Mrs Owens, is not surprising. As was highlighted in the judgment, it is not for the judiciary to change laws which Parliament have made. All they can do is interpret and apply the law. However, the Court did invite Parliament to consider amending the law in this area.
The Court highlighted that Mrs Owens will be free to divorce her husband in 2020, when they will have been separated for five years. She will then be able to rely on a different fact; five years separation without consent, which would not require Mr Owens’ agreement. However, a financial order, such as an application for maintenance or for a sale of the family home, cannot be enforced until the parties are divorced. Whilst Mrs Owens is in the fortunate position of relative wealth and will probably be able to cope without an order being made, many in her position would not.
Resolution, an organisation committed to non-confrontational divorce, has argued that the Government must urgently reform divorce law to allow for “no-fault divorce”. No fault divorce would allow a spouse to end their marriage without any person being at fault. If spouses did not have to apportion blame, this would remove much of the acrimony from divorce, and make it easier for parties to reach an amicable agreement. Society now recognises that when a marriage breaks down, it does not necessarily mean that anybody is at fault. However, the law has failed to keep pace with the changes in society.
Family law practitioners currently have to tread a fine line with divorce petitions such as Mrs Owens. Allegations of unreasonable behaviour must be strong enough to avoid the petition being dismissed, but not so strong that they cause unnecessary hurt and conflict between the parties. After all, a divorce petition is only the first step in a divorce, and spouses will still need to work together to resolve their financial arrangements and how life will look in future for them and their children. Time will tell whether Parliament will take the Supreme Court’s direction and reform this area of law.
If you would like more information or expert advice, please contact the family team on 029 2039 1082.