Owens v Owens and No-Fault Divorce – Progress at Last?
September 11, 2018
Justice Secretary David Gauke is reportedly set to launch a consultation on reforming English family law to allow for so-called ‘no-fault’ divorces, where neither spouse is being blamed for the breakdown of the marriage.
Calls for an overhaul of the law strengthened after the much publicised case of Owens v Owens  UKSC 41 (25 July 2018), where the husband opposed his wife’s divorce petition. Owens went all the way to the Supreme Court, where it was held that the examples of the husband’s alleged unreasonable behaviour relied on were not sufficient to satisfy the test in s. 1(2)(b) Matrimonial Causes Act 1973, namely ‘that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent’. In English law, the grounds for divorce are limited to adultery, desertion or unreasonable behaviour. Spouses can also divorce if they have been separated for more than two years and both are in agreement, or for more than five years if either contests the petition.
Both Lord Wilson (delivering the majority judgment) and Lady Hale (delivering one of two concurring minority judgments) expressed significant unease at the outcome of the case, but felt bound to uphold the husband’s argument on the basis of the law as it currently stands. In particular, the behaviour referred to by Mrs Owens consisted of a number of alleged incidents which on Mrs Owens’ case, while individually minor, when viewed together indicated‘authoritarian, demeaning and humiliating conduct‘. Based on a correct interpretation of the relevant subsection, the court concluded that Mr Owens’ alleged behaviour did not constitute unreasonable behaviour. While contested final hearings for divorce petitions are few and far between – as Lord Wilson remarked, only 0.015% of the petitions filed in 2016 proceeded to a final, contested hearing – as a result of the Court’s decision, Mrs Owens now has to wait until 2020 to reapply for divorce on the basis of what will then have been five years’ separation.
There is, fortunately, a glint of a silver lining. Lord Wilson noted in his judgment that ‘Parliament may wish to consider whether to replace a law which denies to Mrs Owens any present entitlement to a divorce in the above circumstances’, which is something that it will now be doing. Baroness Butler-Sloss introduced the Divorce (etc.) Law Reform Bill (a Private Member’s Bill) to the House of Lords in July, urging a review of the law on divorce and civil partnership dissolution. The Bill is a result of the research of Professor Liz Trinder from the University of Exeter Law School, published by the Nuffield Foundation, which argues that the current law creates needless conflict between spouses that can negatively impact on children. The Bill will now proceed to the second reading in the House of Lords and is supported by a considerable number of family practitioners. It remains to be seen if the proposals come to fruition.