Mr and Mrs Owens’s divorce – what’s it all about?

Another week, another big decision by the Supreme Court affecting separating couples with the case of Owen v Owens [2018] UKSC 41. The story of Mr and Mrs Owens has attracted a lot of press coverage in the main stream media, probably because it is rightly so baffling to the vast majority of people. Why has Mrs Owens not been allowed to divorce her husband; she has not lived with for over three years; she has said he was authoritarian and demeaning to her during their relationship and where the court accepts that the marriage has irretrievably broken down?

Unfortunately, the Supreme Court did not side with Mrs Owens and the outcome is that she must remain married to Mr Owens until 2020 when she will be able to present a further divorce petition on the basis that they have been separated for five years - at that point she will not need to establish one of the fault facts, nor will consent from Mr Owen's will be required.

Ultimately Mrs Owens did not succeed because the Supreme Court upheld the original trial judge's decision that she had not passed the required test of s. 1 (2) (b) of the Matrimonial Causes Act 1973, commonly referred to as the "unreasonable behaviour" ground which as the court commented is misleading shorthand for what the law actually says.

There is only one ground for divorce - the marriage has irretrievably broken down. In addition the petitioner must then satisfy the court that one of the following five "facts":

1. that the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent;
2. that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent;
3. that the respondent has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petition;
4. that the parties to the marriage have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition and the respondent consents to a decree being granted;
5. that the parties to the marriage have lived apart for a continuous period of at least five years immediately preceding the presentation of the petition.

have been proved.

Mrs Owen's petition was drafted in accordance with the best practice guidance issued by the Law Society and endorsed by Resolution - (the Solicitors' Family Law Association) that where a petition is issued on the basis of Fact (b) so called "unreasonable behaviour", the petitioners should be encouraged to only include brief details of alleged behaviour in the statement of case, worded in such a way as not to limit rather than inflame the ongoing emotional turmoil. Ideally the content of the petition should also be agreed with the other party in the hope that this may make it easier for them to work together to reach agreements on other the matters that they need to resolve such as the arrangements for their children and financial issues.

In this particular case, Mr Owens did not agree that the marriage was at an end. He was not prepared to agree the petition and decided to defend the proceedings. Mrs Owens then had to prove her case that the allegations she had made about Mr Owen's behaviour were such that she could bot reasonably be expected to continue to live with him. The trial judge felt that they were not and the Supreme Court have upheld that decision, despite expressing misgivings about the way Mrs Owen's case was presented to and dealt with by the original judge.

The Supreme Court judges indicated their uneasiness with the decision, particularly given the personal consequences for Mrs Owens, however, they made it clear that it is not for them to change the law - rather this is a job for Parliament. The call for a change in the law to allow No fault Divorce will inevitably continue

The Supreme Court confirmed that the approach to drafting divorce petitions in the way recommended by the Law Society is not wrong and that in the vast majority of cases it is possible to agree the content with the other party. Until such time as the law is changed, this case does however the raise important points about how a divorce petition may need to be drafted if there is an indication the other party may not be cooperative.

The unfortunate consequence of the decision for Mrs Owens is that, although she has been separated for some time, she must remain legally entwined to a husband that she says is authoritarian and controlling. (It could be said that Mr Owens' defence of his wife's petition, notwithstanding the lack of prospect of any reconciliation and the trial judge's finding 2 years ago the marriage had irretrievably broken down, as further evidence of this behaviour). Psychologically Mrs Owens is stuck in the mire of marital breakdown - she is unlikely to feel that she can move forward either emotionally, or in practical terms because - without a decree of divorce - the court is also unable to conclude financial matters arising from their separation.

The court cannot make final financial orders dealing with the distribution of the parties' assets and income, save on a limited interim basis until decree nisi has been pronounced in a divorce. Given that her petition has been dismissed - after 3 years of Court proceedings Mrs Owens is not only back to square one but she cannot begin the divorce process again until 2020. Whilst the Matrimonial Causes Act 1973 s.27(1) does give the court the power - even when no divorce petition is before the court - to make maintenance and lump sum orders the ability to so this only arises if the other party has failed to make reasonable financial provision for the other.

Fortunately for Mr and Mrs Owens it appears they are very comfortable financially, so perhaps they will both be able to manage without seeking interim relief for another two years, but it cannot be said by anyone (except perhaps Mr Owens) to be satisfactory to prevent people moving forward with their lives, leaving them in financial and emotional limbo, where at least one of them has said that they have been deeply unhappy in the marriage or civil partnership and indeed are no longer living together as a couple. Whilst it will be of no comfort to Mrs Owens perhaps some good will come out of her plight and the publicity that the case has received will prompt the Government to implement law reform to allow no fault divorce.

Having gone through probably the most infamous contested divorce in modern times - unless agreements have already been reached - then the prospect of these two people being able to reach an amicable settlement of financial matters in the future seems highly unlikely.

This article is for general guidance only. It provides useful information in a concise form. Action should not be taken without obtaining specific legal advice.