17 May 2018

Owens V Owens: A need for divorce reform

"It is not a ground for divorce that you find yourself in a wretchedly unhappy marriage, though some people say that it should be."

These comments by the President of the Family Division, Sir James Munby, strike at the heart of the case of Owens v Owens, which reached the Supreme Court on 17 May. The appeal concerns the proper approach to divorce proceedings and whether the relevant legislation has been constructed correctly in the lower court's refusal to grant Mrs Owens the divorce she seeks.

The case before the Supreme Court

By way of background, Mr and Mrs Owens married in 1978 and had two children together. In February 2015, Mrs Owens moved out of the marital home, petitioning for divorce three months later.

In England and Wales, there is only one ground for divorce: that a marriage has irretrievably broken down. This can be demonstrated by one of the following five facts: adultery; desertion; 2 years' separation (with the consent of your spouse); 5 years' separation (without such consent); or "unreasonable behaviour," as it has become known.

The interpretation of the final fact is at issue in Owens. Mrs Owens listed various examples of Mr Owen's behaviour that she said left her feeling unhappy, unloved, unappreciated and embarrassed. Sufficient grounds for a divorce, one could be forgiven for thinking.

However, Mr Owens disagreed and chose to contest her petition. The court then had to consider the relevant statutory wording for "unreasonable behaviour." There are objective elements to the investigation (in whether the conduct on the part of the respondent is objectively blameworthy), but there is also a subjective element, in which the impact of the alleged behaviour on the petitioner is considered. The question then asked is whether the particular respondent has behaved in such a way that the particular petitioner cannot reasonably be expected to live with them.

After cross-examining the parties in depth about their marriage, Judge Tolson QC found that Mr Owens' behaviour was not such that his wife could not reasonably be expected to live with him. Although it was found – as a matter of fact – that the marriage had broken down, Mr Owens' behaviour did not meet the necessary legal threshold. The Court of Appeal upheld the judgment in February 2017, meaning Mrs Owens has been - in her own words - locked into a loveless and unhappy marriage, potentially until February 2020 (at which point she can rely on 5 years' separation).

Yet does the law really necessitate a finding of behaviour that is "bad enough", or should the balance be tipped in favour of considering the effect of the alleged behaviour on the petitioner? Indeed, must a minimum threshold of "bad behaviour" be established if the court has already established that the marriage has broken down and the petitioner cannot be expected to live with the respondent? These questions will, it is hoped, be answered by the Supreme Court.

A need for reform

In truth, Mr and Mrs Owens' case is highly unusual; the vast majority of divorce petitions in England and Wales go undefended. Indeed the Court of Appeal noted that fewer than 2.28% of divorce petitions – and potentially as few as 0.015% - are ultimately defended.

Although the Supreme Court does not have the power to reform the law (that is a task for Parliament), the present case has shone a spotlight on the difficulties caused by the current state of divorce law in this country, which has gone unchanged for over 40 years.

The current system is something of a sham, with most couples relying on "unreasonable behaviour" to obtain a relatively fast divorce, rather than waiting 2 or 5 years to rely on separation. The result is that they tread a delicate balance between citing behaviour that is sufficient to reach the threshold required by law, but not so much so as to unnecessarily provoke their spouse to defend the allegations. In any event, the requirement to attribute fault only serves to increase tension between separating spouses in an already difficult situation.

Resolution, the national association of family lawyers which promotes a constructive approach to family law disputes (and of which the entire Forsters' family team are members), has been campaigning for a change in the law for decades. It has also been given permission to intervene in the case of Owens about the proper construction and application of the law.  It submits that the current law can be interpreted in a way that allows Mrs Owens' divorce, arguing that the law does not necessitate any finding of behaviour that is characterised as "bad enough" or "unreasonable" on the part of a respondent. The focus, it submits, should be of the impact of that behaviour on the petitioner, it being recognised that behaviour which might be insignificant to one person could well be considered unbearable to another.

In its submissions, it also notes that the requirement to allege "unreasonable behaviour" has a tendency "to antagonise and to engender animosity, bitterness and recrimination, and thus to exacerbate and increase the inevitable trauma of the breakdown of the marriage." It also effects the ability of the parties to co-operate in relation to their finances and children.

Whatever the decision of the Supreme Court, it is clear that wholesale reform of the divorce system is long overdue. It cannot be right that spouses are forced to attribute fault if they wish to obtain a divorce with less than 2 years' separation. Nor can it be right that a petitioner is forced to exaggerate their spouse's behaviour in an effort to meet an apparently high legal threshold. One wonders what benefit there is to the state in investigating the intricacies of Mr Owens' supposedly unreasonable behaviour, or of ultimately forcing Mrs Owens to remain married to him.

Lady Justice Hallett in the Court of Appeal noted that the decision of a trial judge who correctly applied the law cannot be overturned "simply on the basis that we dislike the consequence of his decision." The Supreme Court may well agree, in which case the ball will be squarely in Parliament's court to usher in meaningful reform of our outdated divorce system.

Amanda is a senior associate in our Family team.

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