InsightsInsight - Family and Divorce - POSTED: July 25 2018
Owens v Owens highlights the need to reform divorce law
The Owens v Owens ruling emphasises the need for parliament to urgently reform the law governing divorce in England and Wales.
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Judgment was today handed down by the Supreme Court in the divorce case of Owens v Owens, ruling that Mrs Owens, against her wishes, must remain married to Mr Owens. This ruling emphasises the need for parliament to urgently reform the law governing divorce in England and Wales.
The parties married in 1978, and Mrs Owens left the matrimonial home in February 2015. Mrs Owens subsequently petitioned for divorce in May 2015 on the fact of her husband’s alleged unreasonable behaviour, one of five possible facts required to obtain a divorce by showing that the marriage has broken down irretrievably. The allegations of unreasonable behaviour were denied by Mr Owens, which has resulted in lengthy court proceedings, ultimately leading to the Supreme Court having to determine the issue.
The examples of behaviour given by Mrs Owens had not been considered as unreasonable in the lower courts. The crux of the issue to be decided by the Supreme Court was whether to adopt the position of Mrs Owens, namely that she need not show Mr Owen’s behaviour to be unreasonable, but instead that she should not reasonably be expected to remain with Mr Owens. Having to focus on the legislation in force however, it is perhaps no surprise that the Supreme Court ruled in favour of Mr Owens. Ultimately, Mr Owens behaviour was not found to be unreasonable, thus it could not be proved that the marriage has broken down irretrievably.
The outcome of this case highlights that the current law which governs divorce, the Matrimonial Causes Act 1973, is outdated and in urgent need of reform. Indeed the judges of the Supreme Court, in coming to the decision in Owens v Owens, have invited parliament to address this issue.
The concept of marriage has substantially evolved in recent years to incorporate societal changes, most notably with the introduction of same sex marriage, yet our divorce law has not. Having to prove facts such as unreasonable behaviour and adultery to achieve a divorce requires one party to blame the other for the breakdown of the marriage. Current no-fault options such as separation and desertion can require several years longer to achieve a divorce. Marriage breakdown is not necessarily one parties’ fault over the other and our divorce law facilities tension between divorcing couples at an already stressful time. This has even lead to the absurd scenario faced in Owens v Owens, whereby in failing to prove unreasonable behaviour, Mrs Owens is forced to remain married against her wishes.
The solution is to move away from a fault-based divorce process, whereby couples need not place blame on one another. A no-fault divorce would reduce animosity between the parties, likely creating a smoother, quicker and less expensive process. Such a solution has been regularly called for by both judges and family law practitioners alike, though it remains in parliament’s hands as to whether they are minded to bring divorce law up to date by implementing new legislation.
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