As part of Children’s Mental Health Week 2019, we focus on the wellbeing of children whose parents are going through a divorce or more…
Owens v Owens – Supreme Court rules against wife in ‘desperately unhappy marriage’
The Supreme Court has dismissed the appeal of a wife seeking to divorce her husband, in a judgment which highlights once again the need for no-fault divorce to be introduced.
Tini Owens, 68, filed a petition in 2015 seeking a divorce from her husband Hugh Owens, 80. In a highly unusual turn of events, Mr Owens contested the divorce petition, resulting in a family court hearing to examine the evidence and rule on the petition.
In order to obtain a divorce in the UK, one spouse must allege one of five grounds against the other – adultery, unreasonable behaviour, desertion, two years’ separation (with their partner’s consent) or five years’ separation (with no consent required).
Mrs Owens alleged unreasonable behaviour on her husband’s part, but the judge in the family court ruled that none of the 27 examples she gave could qualify as such behaviour. The Court of Appeal upheld this verdict and now the Supreme Court has done so as well.
Whilst this decision may be legally correct so far as its interpretation of the statute book goes, it does raise important moral questions about forcing Mrs Owens to remain in her marriage for 2-3 more years before she can obtain a divorce without Mr Owens’ consent.
The vast majority of divorce petitions in the UK are not contested, which means the strength of the grounds for divorce is not tested in court. Had Mr Owens not opposed his wife’s petition, the divorce would have gone ahead with few questions asked. Instead, she must wait until the five year separation milestone has been reached, at which point she can divorce her husband without his consent.
The case casts the spotlight once more on the entire practice of having to apportion ‘blame’ in order to obtain a divorce. This can sometimes light the fuse of a bitter dispute between divorcing spouses, which unfortunately can spill over into negotiations over financial separation and children. In this regard, requiring one party to allege fault against the other seems almost cruel when its only effect on the process in most divorces is to create unnecessary acrimony.
This is why many divorce lawyers, ourselves included, are broadly supportive of attempts by organisations and media outlets such as Resolution and the Sunday Times, to advocate for ‘no fault’ divorce, a change in the law which would allow divorcees to go their separate ways and not have to make allegations of wrongdoing against each other – a better way forward for them, their children and other family members.
A recent private member’s bill in the House of Lords attempted to introduce no fault divorce; however, private members’ bills rarely become law by themselves. So until the law does change, divorce lawyers and divorcees will have to continue as they are and make sure that the reasons they give for seeking a divorce are as watertight as possible.