The Owens v Owens case – time for a no-fault divorce system

On May 17 the Supreme Court heard its first ever case on divorce itself rather than issues relating to finances or children. Tini Owens, aged 68, wanted the court to grant her a divorce from her husband of 40 years, who refused the split. The Supreme Court unanimously rejected the appeal, meaning she must remain married until 2020. Our family and matrimonial solicitor Lisa Cogger examines the case and what it means for the divorce process.

Tini and Hugh Owens were married in 1978 and have two adult children, and Mrs Owens had been contemplating a divorce since 2012 but did not leave their matrimonial home until February 2015.

In the Owens case, which progressed to the Supreme Court in July, Mrs Owens presented a Behaviour Petition which provided 27 examples of what she perceived to be unreasonable behaviour.

The argument from Mrs Owens was that the correct test was an almost entirely subjective one. In other words, it is the impact of the behaviour on the petitioner that matters, not how that behaviour might be viewed objectively by others.

Furthermore, the behaviour itself does not have to be the reason the marriage has broken down. It just has to be the reason why the petitioner can “no longer reasonably be expected to live with the respondent.”

However, these were rejected by the court as they were now deemed as substantive enough reasons for divorce.

It was hoped the case would provide further momentum for the introduction of a no-fault divorce system, rather than one which encourages blame often leading to a more acrimonious, and expensive, process.

In many countries there is a simplified system where you jointly sign a statement of irreconcilable differences. In the US acceptable grounds fall into two categories, fault and no-fault, with no fault reasons including incompatibility and separation.

In Australian law the Family Law Act 1975 established the principle of no-fault divorce. Their courts do not consider why a marriage ended as the only ground for divorce is that the marriage broke down and there is no reasonable likelihood that the parties will get back together.

In Canada a no-fault divorce simply requires the completion of a one-year separation period.

In the Owens case, president of the Supreme Court Baroness Hale of Richmond made it clear that it was not for the court to reform the divorce process.

She stated: “It is not for us to change the law laid down by parliament — our role is only to interpret and apply the law that parliament has given us.”

However, so far this call for reform has met with deaf ears among legislators despite long term lobbying from family lawyers association Resolution, and a YouGov poll which revealed 69% of the population think you should be able to divorce without having to show your spouse is at fault.

Anyone interested in family and matrimonial legal advice can contact Lisa Cogger at Bowcock & Pursaill on 01538 370830 or email lc@bowcockpursaill.co.uk

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