Owens v. Owens  EWCA Civ 182 – Divorce petition refused by the Court of Appeal
In a decision which caused much consternation amongst family lawyers, the Court of Appeal ruled that Mrs Owen would not be granted a divorce on the basis that a “wretchedly unhappy marriage” was not grounds for divorce. The court also found that her husband’s behaviour amounted to “minor altercations of a kind to be expected in a marriage” and that Mr Owens had not behaved in a way that meant Mrs Owens could not reasonably be expected to live with him under section 1(2)(b) of the Matrimonial Causes 1973 Act. Consequently, her divorce petition was refused.
During this case, the court considered the history of divorce law and the continuing debate over “no-fault” divorce. It concluded that “It is for Parliament to decide whether to amend the law and to introduce a “no fault” divorce on demand. It was not the judges’ role.
At present, in order to get a divorce, the petitioner has to satisfy the court that there has been an irretrievable breakdown of the marriage, which must be proved by one of the following five facts:
- The respondent has committed adultery and the petitioner finds it intolerable to live with the respondent.
- The respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent.
- The respondent has deserted the petitioner for a continuous period of at least two years immediately before the start of the divorce.
- The parties have lived apart for a continuous period of at least two years immediately before the start of the divorce and the respondent consents to a decree being granted.
- The parties have lived apart for a continuous period of at least five years immediately before the start of the divorce.
It is therefore not possible currently to petition on a “No fault” basis. The earliest that a petition can be issued without allegations being made is after 2 years of separation.
Commenting on the case, Nigel Shepherd, the chair of Resolution, said: ‘This judgment will obviously come as a disappointment to Mrs Owens, and absolutely underlines the urgent need for no-fault divorce. ‘Successive governments have dragged their heels on this issue for too long. Owens v Owens must be the spark that ignites a fundamental change in our divorce law’.
It may well be that this case will prompt further calls for parliament to re-examine the current divorce law; but in the meantime the case highlights the importance of drafting a petition in such a way as to ensure that the petitioner is entitled to the divorce but at the same time ensuring that the allegations made do not make the case unnecessarily acrimonious.
At Aletta Shaw our experienced family lawyers can guide you through the process for an affordable fixed fee.
If you wish to discuss anything in this article further or to book a consultation, please contact Rachel Duke at Rachel@alettashaw.co.uk or on 020 3872 6666.