Owens v Owens a Case on Divorce decided by The Supreme Court on the 25th July 2018

Owens v Owens a Case on Divorce decided by The Supreme Court on the 25th July 2018

This is a case on grounds for Divorce and is extremely unusual.

The Brief Facts

The facts very briefly are that Mrs. Owens wishes to divorce Mr. Owens. The parties separated in February 2015 and have not since lived together.

Mrs. Owens issued a divorce petition in May 2015 on the ground that the marriage had broken down irretrievably (always required for divorce) and further the ground that Mr. Owens had behaved unreasonably.

The Decision of The Supreme Court

The Judge at first instance decided that Mrs. Owens Petition did not contain sufficient unreasonable behaviour and therefore the Petition was dismissed. His view was that the allegations were flimsy and exaggerated.

The Supreme Court dismissed the appeal. When they did that however they expressed their unhappiness about this but they are bound by the Judge’s decision and the conduct of the hearing at first instance.

In assessing whether section 1 (2) (b) of The Matrimonial Causes Act 1973 (unreasonable behaviour) the test is initially what was  the conduct of the Respondent.

Secondly, the effect of that conduct on the Petitioner should be assessed and then finally given the above can the Petitioner be expected to live with the respondent?

The Supreme Court commented that the Judge had given the correct self-direction but they were concerned about the Judge’s analysis.

The Judges of The Supreme Court felt that they could not interfere with the Judge’s decision at first instance.

They were unhappy about a decision which prevented Mrs. Owens obtaining a divorce.

They suggested that Parliament may consider replacing the current law.

Our Comments

The current law is that a Divorce can only be granted on irretrievable breakdown of marriage and then for one or more of five grounds under the Matrimonial Causes Act 1973 to apply.

Three grounds are fault based, adultery, unreasonable behaviour and desertion after two years by the other party. The fourth is two years apart with consent of the other party and the fifth is five years without consent.

It is simply not understood why fault should be retained. We believe it is an anachronism. It is fair to say issues such as Mrs. Owens denial of divorce are extremely rare. It still though appears to be antiquated law.

Australia with a very similar legal system to England and Wales (our jurisdiction) passed the Family Law Act 1975. Following that Act a court does not enquire as to why the marriage has ended. The parties must be separated for at least 12 months and 1 day and there must be a finding that the marriage has broken down irretrievably.

In this matter so long as the law remains unchanged Mrs. Owens will have to issue a divorce Petition after 5 years apart e.g. from February 2020.

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