Unreasonable law – contested divorce and the case of Owens v Owens

Tue 16th May 2017

Widespread discussion and debate has been sparked by the recent Court of Appeal judgment in the case of Owens v Owens [2017] EWCA Civ 182, reigniting long-held calls for a change in the law to allow for no fault divorce.

Mr and Mrs Owens were married for 37 years prior to their separation in 2015 and had two children together. Mrs Owens petitioned for divorce under section 1(2)(b) of the Matrimonial Causes Act 1973, claiming that her husband had behaved in such a way that she could not reasonably be expected to live with him. Mr Owens contested this. The behaviour cited by Mrs Owens included being unsupportive, and being disparaging of her to others and in public, all of which Mr Owens argued was part of married life. The behaviour cited, it was suggested, were examples of individual events that taken together amounted to a pattern of conduct.

The judge at first instance, HHJ Tolson, refused Mrs Owen’s application. HHJ Tolson found that the marriage had irretrievably broken down but that Mrs Owens had failed to prove Mr Owen’s behaviour was such that she could not be expected to live with him. He suggested she was “scraping the barrel” and that her allegations were “at best flimsy”. He found that they were not examples of a pattern of conduct.

Mrs Owens appealed to the Court of Appeal citing that HHJ Tolson had:
a) failed to make core findings of fact (1) as to what the husband had actually done in relation to the 27
pleaded allegations and (2) as to the impact of that conduct on the wife;
b) failed to undertake any proper assessment of the wife’s subjective characteristics;
c) failed to undertake any assessment of the cumulative impact and effect on the wife of the husband’s
behaviour, and
d) failed to apply the law properly to the facts.

She also appealed on human rights grounds, arguing that her article 8 right to a private life was engaged, as well as her article 12 right to marry, and that previous authorities should be considered in light of these human rights, as well as the need to find ‘fault’ is consistent with these rights.

The Court of Appeal dismissed the appeal, finding that HHJ Tolson applied the law correctly, made clear findings that were open to him to make, and gave adequate reasons. However, Lady Justice Hallett made clear her displeasure that “try as I might”, there was no legitimate basis for challenging the judge’s findings, expressing her judgment “with no enthusiasm whatsoever”.

There remains a broad consensus amongst family practitioners that the law should change to allow for parties to agree they want a divorce without having to accuse their husband of wife of bad behaviour. However, President Munby questioned whether there is any appetite for reform when divorce petitions are so rarely contested.

In reality, in the majority of cases divorce is by consent, as parties agree a form of words in the petition that is acceptable to both and that will allow the divorce to proceed. This has been described as “collusion” by President Munby and as a “fudge” by a recent study carried out at the University of Exeter (Professor Liz Trinder, “Finding Fault” research). Good practice guidance suggests that behaviour cited should be agreed between the parties, ensuring the behaviour is enough for the decree nisi to be granted, but not enough to cause further distress and upset to the parties. President Munby described the current law as involving parties using “hypocrisy and lack of intellectual honesty”.

It should not be necessary to force divorcing couples to go through a potentially upsetting, and apparently pointless, “legal ritual” which has no obvious benefits to any party involved (University of Exeter study).

It has been suggested that Mr Owens’ opposition to the divorce, in the context of the suggestions of his controlling behaviour, may amount to behaviour to justify the divorce and that Mrs Owens could lodge a fresh petition. On 24th April 2017 it was announced that Mrs Owens has sought permission to appeal to the Supreme Court.

The government has confirmed that they “have no current plans to change the existing law on divorce.” This does not reflect the reality of modern divorce. The Court of Appeal applied the law but it is clear that the law must reflect majority view of modern society.


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