No fault divorce: Mrs Owens' final appeal

The Supreme Court handed down Judgment yesterday relating to Mrs Owen’s final appeal against a decision to dismiss her divorce petition. Mrs Owens, who has lived separately from Mr Owens for 3 years, will have to remain married until she can start divorce proceedings on the basis she has been separated from Mr Owens for 5 years.

Mrs Owens is now 68 years old and Mr Owens 80 years old. They had a long marriage, marrying in 1978 and separating in 2015. They have two children who are now adults and both Mr and Mrs Owens enjoy some wealth. The case is highly unusual because Mr and Mrs Owens were prepared to pay significant legal fees just to argue about whether or not they should remain married for a further two years. Few divorces are defended for costs reasons and most take the pragmatic view that delaying the divorce is delaying the inevitable if their marriage has broken down.

Mrs Owens had an affair in 2012/13. Mr Owens found out and wasn’t very pleasant to Mrs Owens but still maintained they had found a way to get along together. Mrs Owens tried to argue that her lengthy marriage to Mr Owens had been an unhappy one and that in fact Mr Owens had behaved in a way that she found unreasonable. His behaviour, not her affair, was the real problem.  Her allegations were not unusual and appear in many divorce petitions. She claimed:

• Mr Owens had prioritised his work;
• He failed to show love and affection towards her;
• He was moody and argumentative;
• He criticised her in front of others;
• His behaviour led her to feel unhappy, unappreciated, upset and embarrassed and she had grown apart from him.

Mr Owens denied the allegations. Mrs Owens expanded her allegations significantly to 27 separate examples of Mr Owen’s unreasonable behaviour. The Judge concluded that the allegations were at best “flimsy”. Mrs Owens didn’t like the decision and appealed it to the Court of Appeal.

The Court of Appeal considered the legal arguments in some detail and referred to some very old cases but ultimately again said Mrs Owens had to remain married. Mrs Owens didn’t like the decision and appealed to the Supreme Court.

The Supreme Court has said Mrs Owens should remain married and whilst acknowledging that denying her appeal generates “uneasy feelings” and commenting that Parliament may wish to consider changing the law, ultimately concluded that Mrs Owens allegations were too weak on the basis of the current law.

It is anticipated that this Judgment will in turn mean that those seeking a divorce on the basis of behaviour will have little alternative but to issue divorce petitions in the strongest possible terms. Sadly this is likely to set what most will believe to be an undesirable hostile tone against which children and financial issues need to be resolved. Resolution, an association of over 6000 family lawyers and professionals, continue to lobby Parliament for no fault divorce.

If you’d like to discuss divorce or any of the issues outlined above with our Family Law specialists, please call 0113 201 4902 or email family.law@emsleys.co.uk.