What Owens v Owens tells us about the need for divorce law reform

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What Owens v Owens tells us about the need for divorce law reform

17 May 2018

The Supreme Court is currently hearing the final arguments of Tini Owens and Hugh Owens, who have been engaged in a long fight over whether Tini is entitled to a divorce.

In anticipation of the result, we reflect on the current law and how it has led to a married couple arguing in the Supreme Court.

What are the grounds for divorce in England & Wales?

There is actually only one ground for divorce in England & Wales, which is the irretrievable breakdown of the marriage.  However, to prove that a marriage has irretrievably broken down, the petitioner must rely on one of five specified “facts”.  If their spouse does not accept the facts and agree to the divorce, a trial is held to determine whether the petitioner’s “facts” are proven and the divorce can proceed.

Why don’t we have no fault divorce?

Actually, we do.  If the parties wish to divorce without pointing the finger, they can do so after they have been separated for two years, provided they both agree.  If only one party wants the divorce to go ahead, they can petition for divorce on a no-fault basis after being separated from their spouse for five years.

Why shouldn’t you wait?

The court can only make binding financial orders within divorce proceedings once the Decree Nisi has been pronounced.  The Decree Nisi is a certificate from the court confirming that the petitioner is entitled to a divorce.  This is considered to be the “midway” part of the divorce process and typically takes between six and twelve weeks from the divorce petition being processed.

It is likely that once you have decided that your marriage has come to an end that you will want to formalise the separation of both your personal lives and your finances.  Waiting for a period of five years to be able to do this is agonisingly frustrating, and often highly problematic.

Unreasonable behaviour – unreasonable laws?

The concept of “unreasonable behaviour” is highly subjective.  As mentioned previously unreasonable behaviour isn’t actually the basis for the divorce, the basis is the irretrievable breakdown of the marriage.

Why should the court have to determine whether one party’s behaviour has been so unreasonable that it would be intolerable for their spouse to have to remain married to them? And how can they do so in a way that is fair to individuals and consistent enough for couples and lawyers to understand what might lead to a successful petition?

The Supreme Court’s decision in Owens v Owens will not change the existing law so that “no-fault divorce without delay” becomes an option available to unhappy spouses.  It is not within the court’s power to make those changes.

Mr & Mrs Owens are arguing over the correct interpretation of the current law.  Does Mrs Owens have to prove that Mr Owens has behaved unreasonably, as he argues, or does she only need to prove that she finds it intolerable to live with him as a result of her perception of his behaviour, as she argues?

Is change needed?

It is widely accepted that divorce laws are long outdated and in need of reform. Baroness Hale, who is sitting on the the Supreme Court bench overseeing Owens v Owens, has championed changes to divorce law and considers the current system “confusing and misleading”.

In many cases it is simply unrealistic for a respondent spouse to defend a divorce petition as it is extremely costly, and if they agree that the marriage has broken down there is often little point in doing so.  In most cases both parties feel aggrieved at the other’s behaviour.

Ultimately, pointing the finger of blame at one spouse and not the other causes unnecessary tension with no tangible benefit, often to the significant detriment of their children and their new family unit.  Financial settlements are often much harder to agree when one spouse is still reeling from the contents of the divorce petition.

Resolution – a national organisation of family lawyers, of which the Kuits team are a member and an accredited specialist – continues to lobby for a change to the existing law, to reflect the realities of today’s society and to protect families from the unnecessary acrimony and distress that often accompanies a fault-based petition for divorce.

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