25 Jul The decision in the case of Owens and Owens has been published today. What does it mean for divorces in England and Wales?
Mr and Mrs Owens were married in 1978. Mrs Owens left the marital home in 2015 and applied for a divorce on the ground that the marriage had irretrievably broken down due to the fact that Mr Owens had behaved in such a way that she could not reasonably be expected to live with him. Mrs Owens divorce petition provided examples of Mr Owens’ behaviour. However, Mr Owens defended the divorce and said the marriage had not broken down. Mrs Owens was given permission to provide more details of his behaviour. The court decided the examples of behaviour Mrs Owens had provided were not sufficient to meet the legal test needed and so she had to remain married to Mr Owens. This then left Mrs Owens married to Mr Owens and unable to divorce on the basis of his behaviour, with her having to wait until she and Mr Owens have lived separately and apart for a total of 5 years before she could then apply for a divorce due to having been separated for 5 years.
Mrs Owens appealed the decision firstly to the Court of Appeal but was unsuccessful, she then appealed to The Supreme Court. The Supreme Court’s judgment has been published today. They have again decided that Mrs Owens examples of Mr Owens’ behaviour are not sufficient and so she cannot divorce him on the ground of his behaviour. She therefore has to remain married to him.
It has become the norm for behaviour divorce petitions to be drafted in a bid to avoid creating more conflict and so the examples of behaviour are often short and watered down. Normally the other person does not defend the divorce and so the examples of behaviour are never tested to see if they are sufficient (meet the legal test). However, due to Owens and Owens people may now be concerned about their divorce petition being defended and so may now provide lengthy examples of behaviour drafted in a more hostile way. Whilst this may ensure the examples comply with the legal test, it is going to create more hostility between the parties at an already difficult time in their lives. This an unfortunate situation and is due to the fact that we have a fault based divorce system in England and Wales which will not change until Parliament changes the law.