The Supreme Court has this week, ruled against Mrs Owens in the long awaited result of the divorce case of Owens v Owens  UKSC 41. The court upheld previous decisions by the original trial judge and the Court of Appeal that Mrs Owens must remain married to her husband until 2020. Lodders’ Family law expert, Amy Parker explains the facts of the case.
The divorce petition
Mrs Owens (68) petitioned for divorce from Mr Owens (80) in May 2015 relying on the fact her husband ‘had behaved in such a way she cannot reasonably be expected to live with him’. This is sometimes erroneously referred to as ‘unreasonable behaviour’ but it is not the behaviour that has to be unreasonable, it is the expectation of the petitioner to have to continue living with their spouse in light of their behaviour.
In her divorce petition Mrs Owens relied on 5 paragraphs particularising Mr Owens’ behaviour which included comments he had prioritised work over their home life, that his treatment of her lacked love or affection, that they had grown apart, that he had been moody and argumentative, that he had disparaged her and she felt unhappy, unappreciated, upset and embarrassed.
Mr Owens defended the petition. Defended petitions are, as Lord Wilson noted in the lead judgment ‘exceedingly rare’. Even if one party intends to defend the divorce, a compromise can usually be reached. Both parties may issue petitions and agree the divorce will proceed on the basis of ‘cross petitions’; the petition may be amended to a form of wording the other party can accept or, reluctantly, the respondent can agree to the petition proceeding undefended, in the expectation if one party finds it intolerable to live with the other the petition is likely to succeed. It is better to avoid the costs of a contested hearing.
Of the 114,000 divorce petitions filed in 2016, 800 answers were filed but only 17 went on to a fully contested hearing.
At a directions hearing Mrs Owens was given permission to expand her allegations of behaviour and both parties filed witness statements. Mrs Owens gave 27 individual examples of Mr Owens being moody, argumentative and disparaging her. The hearing was listed for 1 day. No other witnesses were called and the hearing focused on only a few of the allegations.
The Judge at first instance decided the petition was ‘hopeless’, the 27 examples of behaviour were at best ‘flimsy’, Mrs Owens had significantly exaggerated their context and seriousness and she was ‘more sensitive that other wives’.
Mrs Owens appealed to the Court of Appeal. Her appeal was dismissed. She applied for permission to appeal to the Supreme Court, which was granted, however Lord Wilson noted her application for permission was founded upon a novel interpretation of the law which at the hearing she abandoned.
A ‘troubling case’ for the Supreme Court
Giving the lead judgment in the Supreme Court, Lord Wilson confirmed on a behaviour petition the court’s inquiry has three stages;
- By reference to the allegations of behaviour in the petition, to determine what the respondent did or did not do;
- To assess the effect which the behaviour had upon this particular petitioner in light of the latter’s personality and disposition and of all the circumstances in which it occurred and
- To make an evaluation whether, as a result of the respondent’s behaviour and in the light of its effect on the petitioner, an expectation that the petitioner should continue to live with the respondent would be unreasonable.
Although the Supreme Court noted they found it a ‘troubling case’, they reluctantly dismissed the appeal reminding the public they cannot change the law, only interpret and apply the existing law.
Lady Hale was concerned about the trial Judge’s interpretation of the law and in particular;
- His use of the shorthand ‘unreasonable behaviour’ which can lead to a search for blame or who is more to blame, which is not required. She noted it was misleading to refer to ‘no fault divorce’ as law does not require fault. Divorce is conduct based rather than fault based .
- The Judge appeared to have thought the behaviour complained of had to be the cause of the breakdown of the marriage. There does not, however, need to have been a causal connection.
- The way in which the court conducted the hearing did not allow proper evaluation of the cumulative effect of the allegations of behaviour.
Lady Hale’s preference was to allow the appeal and remit the case for rehearing, however a rehearing was not sought by Mrs Owens and reluctantly she dismissed the appeal.
Consequently, Mrs Owens must remain married to Mr Owens until at least 2020 when she could present a petition on the basis that they had then lived apart for a continuous period of five years. She cannot rely on two years’ separation without Mr Owens’ consent.
Will this lead to a change in how divorce petitions are drafted?
Parties are encouraged to ‘include only brief details in the statement of case’ and to agree the content of the petition with the other party. The result is that petitions are often watered down. We have, since the case of Owens was first reported, experienced petitions being returned by the court as lacking ‘beef’, to use the phrase coined by the first instance Judge in Owens ‘, even where the other party is not seeking to defend the divorce.
However, the Supreme Court did not criticise the filing of mild petitions. Lord Wilson commented that ‘it should have been a compliment’ that the petition ‘lacked beef’. The consensus amongst family lawyers is the judgment will not and should not lead to a change in current practice. It is far more constructive to reaching an agreement in relation to financial matters and the arrangements for any children if the proceedings have not started with an inflammatory petition.
This is a wholly exceptional case.
The case for reform
This decision highlights the unsatisfactory state of divorce law in the UK and will only increase the calls on Parliament to ‘end the blame game’. Resolution, who intervened in the Supreme Court appeal, has led a sustained campaign for ‘no-fault divorce’. Resolution is proposing a divorce petition where one or both partners can give notice the marriage has broken down irretrievably and the divorce would proceed after 6 months if one or both parties still wanted the divorce. That would avoid the need for parties to prove that the marriage has broken down irretrievably by relying on one of 5 facts, as at present, with only behaviour or adultery enabling the parties to petition without waiting 2 or 5 years.
We will have to wait and see whether the outcome of this case leads to a change in divorce laws. Reform is long overdue.
To see the full judgment, please click here.
For more information about Lodders’ Family Law services see, or contact:
Beverley Morris: email firstname.lastname@example.org
Amy Parker: email email@example.com