The Supreme Court has rejected a petitioner wife’s appeal against a decision dismissing her divorce petition sparking calls for reform to the divorce system.
In England and wales divorce can only be granted on the basis that the marriage has broken down irretrievably (s.1(1) Matrimonial Causes Act 1973 (MCA)).
The court will only hold that the marriage has broken down irretrievably if the petitioner establishes one of five statutory grounds, which are adultery, five years separation, desertion, 2 years separation (where the parties consent) or unreasonable behaviour.
In Owens v Owens ( UKSC 4) Mr and Mrs Owens had been married for 40 years and had two adult children. After leaving the matrimonial home in 2015 Mrs Owens presented a divorce petition alleging that Mr Owens had behaved in a way that she could no longer be expected to live with him. Mrs Owens alleged that Mr Owens prioritised work over home life, showed her little love and affection, was moody and argumentative and disparaged her in front of others.
Mr Owens defended the petition arguing that the (relatively anodyne) examples of unreasonable behaviour did not meet the test at s.1(2)(b) Matrimonial Causes Act 1973.
At first instance the judge dismissed the application holding that although it was clear the marriage had broken down irretrievably, the examples cited by Mrs Owens were not robust enough to satisfy s.1(2)(b) MCA 1973.
Mrs Owens appealed to the Court of Appeal who upheld the first instance decision but gave Mrs Owens permission to appeal to the Supreme Court.
At the Supreme Court justices Wilson, Black, Hodge, Hale and Mance unanimously dismissed the appeal, inviting Parliament to ‘consider whether to replace a law which denies [petitioners] any present entitlement to a divorce in the above circumstances’.
Owens v Owens has reignited a long running debate about whether England and Wales should introduce no fault divorce.
Nigel Shepherd, former head of Resolution said that the current rules are forcing couples to make allegations (of unreasonable behaviour) against their ex where they did not have to do so adding that the divorce process is ‘needlessly outdated [and] no longer fit for purpose’.
Owens v Owens emphasises the importance of seeking professional advice if you are thinking of separating or divorcing.
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