The Supreme Court released its ruling in the case of Owens v Owens yesterday. Mrs Owens was married to her husband for 40 years and applied for divorce on the ground that marriage had broken down irretrievably. Mrs Owens sought to rely on her husband’s unreasonable behaviour as the reason for the relationship breakdown. The application was defended by her husband and the court denied the divorce. Mrs Owens appealed the decision, firstly at the Court of Appeal, and most recently, on 17th May 2018, at the Supreme Court.
Defending a divorce petition is a fairly rare occurrence, with most couples taking a view that if one person is determined that the marriage is over, that they should not continue to be trapped in an unhappy relationship. Most family lawyers that I have worked alongside tend to support this position, striving to minimise conflict, protecting children from unnecessary emotional turmoil and advising couples to have constructive discussions about the end of their relationship and to move forward with their lives.
The contentious, and in some respects uneasy decision in the Supreme Court yesterday, flies in the face of modern practice and has meant that Mrs Owens has been forced to remain married to her husband for a further two years when she can claim that she has been separated from him for five.
The court’s decision has also highlighted the reality that current divorce law is archaic and not fit for today’s modern society. In my experience, many clients are surprised to find that unless they blame their spouse, citing specifics of adultery or behaviour, they must wait at least two years, and have their spouse’s consent, before they can apply and obtain a divorce. In Mrs Owens case, the court found the behaviour allegations she sought to rely on in her application were not unreasonable enough and the only ground therefore available to her that didn’t require her husband’s consent, was that of 5 years separation.
Resolution, the family lawyers’ organisation, has come out in support of Mrs Owen’s case commenting that “in this day and age it is outrageous that Mrs Owens – or anybody- is forced to remain trapped in marriage. This judgement underlines how vital it is that government now urgently reforms the divorce law.”
This is the second time in recent history that the need for change in current divorce law has been emphasised. In 1996 there was a strong movement for a no fault divorce to be adopted by the courts but this ideal was ultimately not converted into legislation. This latest judgement is a high profile example of the vital need for reform and will hopefully re-invigorate campaigns for the basis of the system to be reviewed and brought up to date. Many countries around the world- including Australia, the USA and Spain allow for divorce without blame.
At a time when many people facing a divorce or separation feel that their lives are in turmoil, surely we should be doing what we can to help preserve vital family relationships, rather than encouraging blame and inflaming feelings of injustice and recrimination?
Despite this judgement, I remain committed to helping clients maintain their respect and dignity in difficult times. I work with many clients who wish to work through the divorce process with self-respect and dignity and to achieve what is most important to them. From achieving a fair financial settlement to doing what is best for children, many of my clients want to constructively resolve all differences with their partner. The law needs to catch up and provide an appropriate framework that encourages this and not perpetuate an outdated approach to marital breakdown.