Unreasonable behaviour as a ground for divorce and the case of Owens v Owens

NGA_Stock_062It is rare as lawyers that we wait with bated breath for a Judgment but it was mouths agog in our office this morning when the judgment on this widely reported divorce case was received from the Supreme Court. It seems a Judgment much at odds with the current zeitgeist and contemporary culture. But perhaps that is the whole point – the court wants to prompt Parliament to update the law.

The facts of the proposed divorce are without doubt sad reading and one cannot but feel some discomfort in seeing this couple’s personal lives dissected in public. The facts of the case are unremarkable: Mrs Owens is now aged 68, her husband aged 80. They have been married for 40 years. The couple have two adult children and would seem to have had a prosperous life together, with Mr Owens being successful in business, supported by his wife. Having been unhappy for some years, in 2015 Mrs Owens filed for divorce against her husband. There is one overriding ground for divorce and that is the irretrievable breakdown of the marriage and there are then five facts which must be given to support that ground: adultery, desertion, being separated for over 2 years (where both parties consent to getting divorced), being separated for over 5 years with no need for the consent of the other party, and then finally the commonly used ground of ‘unreasonable behaviour’.  Like many others, it was this last ground that Mrs Owens relied upon in her case. Her petition was anodyne; most lawyers try to prepare petitions which are sensitive and not unduly controversial and therefore it is no criticism that the petition lacked detail. In her petition, Mrs Owens set out 5 elements of her husband’s unreasonable behaviour, as she perceived it. Her case was that her husband had behaved in such a way that (she) could not reasonably be expected to live with him. Mrs Owens stated that:

– Mr Owens prioritised his work over their life at home,

– his treatment of her had lacked love or affection,

– he had often been moody and argumentative, and

– he disparaged her in front of their friends and as a result she had felt unhappy, unappreciated, upset and embarrassed and had over many years grown apart from him.

Mr Owens decided to defend the divorce on the basis that if the marriage had irretrievably broken down it was not as a result of his behaviour and that as a couple they ‘rubbed along’. The family court would not allow Mrs Owens to have her divorce.  On the basis that the ground was not made out, her petition was dismissed. Mrs Owens then appealed to the Court of Appeal and was unsuccessful and then took her case to the Supreme Court where again she has now been unsuccessful. Mrs Owens has been told that she must remain married to Mr Owens, since under English law being in a ‘wretchedly unhappy marriage was not a ground for divorce’. It now leaves it open to her to apply for divorce upon a different ground or to wait until 2020 to proceed on the basis of 5 years separation without consent.

Surely the case paves the way for parliamentary intervention and a change to the law. Baroness Butler-Sloss has introduced a Private Members Bill to review the current divorce law and the national family lawyers’ association ‘Resolution’ is expressing the view of most sensible family lawyers that it is time for the UK to have ‘no fault’ divorce. The Supreme Court accepted that their decision ‘generates uneasy feelings’ and was ‘troubling’. The consensus seems to be that the Supreme Court has applied the law as it stands and that reform needs to come, not from the courts, but from a change in the law. This will be little compensation for Mrs Owens for whom we can only feel huge empathy.

If you would like any advice on your personal circumstances or, if you are unsure as to your current legal position please email us at hello@ngalaw.co.uk or call on 020 3701 5915 and we will explain how we can help.

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