Today the Supreme Court has announced the judgement of the Owens v Owens case. A case which highlights the argument for no-fault divorce and questioned the current legislation for divorce.
Divorce law in England and Wales has remained the same for the past forty-five years. The one ground for divorce is that the marriage has irretrievably broken down. In addition, one of five possible facts must be established, either; adultery, unreasonable behaviour, desertion, two years separation with consent or five years separation without consent.
Mrs Owens petitioned for divorce on the fact of Mr Owens’ unreasonable behaviour, however the judge decided that the behaviour described was inadequate to decree the divorce. Hence this case in the Supreme Court has focused on the application of the unreasonable behaviour fact within the courts. To establish the fact of unreasonable behaviour the petitioner must show “that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent.” Mrs Owens main argument was that the fact is being applied objectively rather than subjectively.
This morning the Supreme Court dismissed the appeal, meaning Mr and Mrs Owens must remain married until 2020. As Mr Owens is unwilling to consent to the divorce, Mrs Owens will now have to wait to use the only fact now available to her, five years separation without his required consent.
The Supreme Court have outlined the method of inquiries a court should consider when assessing a petition for divorce under the fact of unreasonable behaviour. It was concluded that the test is objective, but with subjective elements. This unfortunately meant Mrs Owen’s appeal failed. The presiding Justices did however invite Parliament to consider replacing the law which denies Mrs Owens a divorce in the present circumstances.
Following this judgment surely such a change in the divorce law is only a matter of time. This country needs a divorce system that is fair and reasonable for all. That system should include properly considered no fault divorce which would bring an end to the acrimony that characterises so many divorce cases and impacts so significantly on those involved. Surely the commentary in this case provides an open goal not to be missed by Parliament.
Richard Reed Family Department