The Supreme Court judgment in Owens and Owens handed down on 25 July 2018 is a reminder that whilst the average marriage may be becoming shorter, the law governing marriage is not so quick to end a marriage where there is no blame.


Mrs Owens sought to divorce her husband of 40 years relying on the ‘fact’ of his unreasonable behaviour. Mr Owens denied he had behaved unreasonably and wanted to save the marriage.  At the first hearing the judge found the 27 allegations of unreasonable behaviour of Mrs Owens “flimsy” and considered Mrs Owens to be more sensitive than most. Mrs Owens’ lawyers sought to challenge that finding at the Court of Appeal and at the Supreme Court but has lost at both.


But why?


Under the Matrimonial Causes Act 1973, the only ground for divorce is that the marriage has broken down irretrievably and to prove this the person seeking the divorce must prove one of five facts:-


  1.            Adultery
  2.            Unreasonable behaviour
  3.            Spouses have been separated for more than two years and both consent to a divorce
  4.            Desertion for two years or more
  5.            Separation of five years or more – consent is not needed.


To establish “unreasonable behaviour”, the person who wants the divorce must prove that other person has behaved in such a way that they cannot reasonably be expected to live with the Respondent.  The question the Court asks itself is:


“Would any right-thinking person come to the conclusion that this Respondent has behaved in such a way that this Petitioner cannot reasonably be expected to live with him or her, taking into account the whole of the circumstances and the characters and personalities of the parties?”


Where the couple has just ‘drifted apart’ they can find themselves cobbling together an agreed list, which is working around the law and hardly in the spirit of it and having to come up with a list of unreasonable behaviours can obviously be antagonistic and upsetting.


Thankfully divorces on the grounds of unreasonable behaviour are rarely defended but Mrs Owens’ experience shows how unjust it can be if they are.  The unenviable Mrs Owens must now wait until she has been separated for 5 years until she can commence her fresh divorce proceedings – or hope that her husband commits adultery before then.


Is this fair? Many family solicitors have been calling for ‘no-fault’ divorces for years. This would bring divorce in line with the government’s view in respect of finances and children disputes, where separating couples are encouraged to mediate and reach a consensual agreement, rather than to apportion blame.


If you would like to discuss this or any other family law issue in more detail, please contact Lindsey Jackson on 01326 574001 or for a confidential no-obligation chat.



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