Julie Tierney

Mrs Owens filed for divorce against her husband on the irretrievable breakdown of their marriage based on Mr Owens’ unreasonable behaviour. Unreasonable behaviour is commonly referred to as a fault ground i.e. one person is blamed for the breakdown of the marriage. To prove Mr Owens’ unreasonable behaviour to the Court, Mrs Owens had to list examples of this alleged behaviour in her divorce petition. Mrs Owens’ examples included occasions where Mr Owens made hurtful or disparaging remarks to her in front of third parties.

Mr Owens defended the allegations against him, stating that the examples provided were not enough to merit ‘unreasonable behaviour’. Unfortunately for Mrs Owens the High Court, Court of Appeal and now the Supreme Court agreed with him. Mrs Owens will now be unable to get a divorce until 2020, after she and her husband have been separated for a period of five years.

As practitioners, we hold a duty to our clients to make every endeavour to encourage an amicable settlement on divorce. However, if this is not possible through voluntary negotiations, parties have no option than to issue divorce proceedings, beginning with citing to the court why the marriage broke down. Currently, if the parties are separated for less than two years, the only grounds available are those that apportion blame: unreasonable behaviour and adultery. How then can parties try to move forward and reach an amicable resolution to the outstanding financial issues when, rightly or wrongly, one side is being blamed entirely for the breakdown of the marriage?

A no-fault divorce does not apportion blame, rather each party agrees that the marriage has irretrievably broken down and, in accordance with the current legislation, as a result of living separate and apart for two or five years. The only problem is that, to rely on the ground of two years separation, the other spouse must consent. It would appear for Mrs Owens that Mr Owens unfortunately does not consent, and, after yesterday’s judgment, leaving Mrs Owens with no other option than to wait until 2020.

Resolution, a body of family lawyers in England and Wales, continue to campaign for legislative reform to allow spouses to separate and divorce without apportioning blame, and without having to wait for two years: “Divorce without blame will increase the chances of success for non-court dispute resolution processes as it immediately puts both partners on a level footing. This will reduce the burden on the family court and help government to meet their aim for more people to resolve their problems outside of the courts.”

Despite the outcome of the judgment, this case has certainly highlighted the need for reform to current family legislation and given a helping hand to Resolution’s campaign. Lord Wilson outlined that the Family Court takes no satisfaction in ruling Mrs Owens must remain married to Mr Owens, despite the fact the marriage has broken down. The Supreme Court has invited Parliament to consider replacing the current law denying Mrs Owens’ of a divorce in her present circumstances.

Julie Tierney is a solicitor at Edwards & Co. Solicitors