Owens v Owens: 25 July 2018
The Supreme Court today gave Judgement in what will surely be known as the landmark case of Owens v Owens which originally came before the Supreme Court on 17th May2018. In this case the Divorce Petition was originally issued in May 2015 by Mrs Owens and has been successfully defended by Mr Owens. The parties married in 1978, Mrs Owens is now aged 68 and Mr Owens is aged 80. They have grown up children and separated in February 2015 when Mrs Owens moved out of the family home and after a short period of renting, into the property next door to the family home which the parties also own. They have not resumed cohabitation since.
Mrs Owens originally sought legal advice regarding the marriage in June 2012 and a Solicitors’ letter was handed to Mr Owens enclosing a draft Divorce Petition based upon section 1(2)(b) of the Matrimonial Causes Act 1973; “unreasonable behaviour” ie that “[he] has behaved in such a way that [she] cannot reasonably be expected to live with [him]”. Mr Owens said that if she filed that petition he would never speak to her again. In November 2012 Mrs Owens began an affair which lasted until August 2013. When she filed her Petition in May 2015, the allegations were very similar to those set out in the original draft Petition. The Trial Judge at first instance said they “lacked beef”. However, family lawyers in England and Wales are advised by the Law Society to keep allegations as mild as possible (to avoid inflaming an already emotive situation) and it would seem unfair, therefore, that Mrs Owens’ petition was criticised in this manner. Mrs Owens amended her petition.
Mrs Owens appealed against the decision to refuse her divorce and Mr Owens successfully defended that appeal. It was necessary for the interpretation of the Act to be considered carefully to ensure the correct meaning was being applied; (a) by reference to the allegations of behaviour in the petition, to determine what the respondent did or did not do; (b) to assess the effect which the behaviour had upon this particular petitioner in the light of the latter’s personality and disposition and of all the circumstances in which it occurred; and (c) to make an evaluation of whether as a result of the respondent’s behaviour in light of its effect on the petitioner, an expectation that the petitioner should continue to live with the respondent would be unreasonable.
It was agreed by the Lords that changes in society have created different interpretations of the law; but with limitations to ensure those interpretations do still remain within the law as it exists. It was further agreed, considering previously decided cases, the interpretation of the law could be applied in the same way today as it was then. It was felt that ideally, the case required a full re-hearing in the lower Court as only 1 day had been allowed to consider 27 allegations raised by Mrs Owens in her amended petition which was clearly insufficient time to enable the three stage test to be applied to each allegation.
Ultimately, the Lords agreed the appeal should be dismissed and Mrs Owens should remain married to Mr Owens until February 2020 when, if she wished, she could file a fresh petition based upon 5 years’ separation. The full Judgement can be read on the Supreme Court website
Lord Wilson said, “I find no behaviour such that the wife cannot reasonably be expected to live with the husband. The fact that she does not live with the husband has other causes. The Petition will be dismissed”.
The outcome of this case creates difficulties for family lawyers advising clients on marriage breakdown as it clearly indicates that until the law is changed it will be necessary for divorce petitions based upon an “unreasonable behaviour” as evidence of irretrievable breakdown to include very clear allegations of the behaviour, to state very clearly the effect of the behaviour upon the petitioner and to ensure the behaviour and effect alleged is such that it would be unreasonable to expect the petitioner to continue living with the respondent. This will require family lawyers to encourage potential petitioners to raise the bar when setting out allegations which is in direct contradiction of guidance and practices encouraged by the Law Society and Resolution.
Resolution intervened in the proceedings in the hope of persuading change to be made but it was made clear that change to the law itself cannot come from those hearing a case and must come instead from the law writers in Parliament. It is time that the divorce law in England and Wales was changed to fall into line with the society in which we live. Many divorcing couples recognise the situation they are in, that they have simply drifted apart and their marriage is not working. Those couples want to dissolve their marriage in as amicable a way as is possible but are prevented from doing so by laws which either require one party to raise allegations against the other or to wait for a set period of time before commencing divorce proceedings. It is often not the divorce itself that couples wish to put into place but a financial order enabling them and their children to move on. However, it is not possible to secure a legally binding financial order (even by agreement) unless Decree Nisi in divorce (the first decree which does not end the marriage) has been pronounced. Those couples are therefore forced to wait to secure their order or to raise allegations they did not wish to raise. This cannot be correct in a modern society.
Is it not time that this was addressed in Parliament and new laws written to meet the needs of the people of England and Wales (Scotland and Northern Ireland have their own laws).
Karen Reardan
Associate Chartered Legal Executive