Tini Owens was left “devastated” after five Supreme Court judges unanimously decided that she had no grounds for divorcing her husband, Hugh Owens, after citing unreasonable behaviour.
The judges admit that the case ‘generates uneasy feelings’ and they call upon Parliament to reconsider the UK’s current ‘fault-based’ divorce system.
On the 25th July 2018, it was ruled that in the case of Owens-v-Owen’s, the marriage must continue until 2020, when Mrs Owens had been living apart from her husband for five years.
After the ruling, the Ministry of Justice stated that: "The current system of divorce creates unnecessary antagonism in an already difficult situation.
"We are already looking closely at possible reforms to the system."
Mrs Owens, 68, from Worcestershire, claimed that despite contemplating divorce in 2012, she finally left the matrimonial home in February 2015.
The current law
The current law requires one party to prove that the marriage has broken down irretrievably.
The law gives five possible ways in which this break down can be proved:
(b) Unreasonable behaviour
(d) Separation for two years (if the other party consents to the divorce)
(e) Separation for five years (if the other party does not consent to the divorce)
Mrs Owen’s case relied on (b); however, the Supreme Court was not satisfied that Mr Owen’s behaviour had been so unreasonable that Mrs Owen ‘cannot reasonably be expected to live with’ him (Section 1(2)(b) of the Matrimonial Causes Act 1973.)
Some suggest that a fault-based system is not conducive to amicable separations. Instead, it can lead to contested divorce proceedings, inevitably creating unnecessary acrimony and expensive legal fees.
The current guidance encourages family lawyers to promote amicable proceedings and offer resolutions which do not require court proceedings, such as mediation. The aim is to minimise conflict and speed up court proceedings. However, there are instances where this guidance is restricted by the current law, as if the parties concerned don’t meet the criteria, it can mean a considerable wait to reapply for a divorce.
This is demonstrated in the case of Owens –v- Owens, as despite the couple having already lived apart for three years, Mrs Owens must wait a further two years before she may be considered grounds for divorce, unless both parties agree to proceed before then.
Question for the court
The law demands that the court asks an objective question: would a reasonable person think that the husband behaved in such a way that the wife cannot be reasonably expected to live with him? In the case at hand, Mrs Owens cites that her husband suffered from intense mood swings, had been unpleasant and disparaging about her, failed to show her love and affection and prioritised his workload over their home life. Her husband retaliated, rejecting the statements in defence of the proceedings and denying that the marriage had irretrievably broken down.
Marriage is an extremely personal concept and experience. The rationale behind the required two or five year separation period is to protect the institution of marriage. Designed as a safeguard against the possibility of divorce becoming ‘too easy’, it aims to encourage couples to work at their marriages instead of throwing the towel in without a fight.
This case demonstrates that in the current law, one party being unhappy alone is not always sufficient grounds for divorce, and that the commitment of marriage is not to be taken lightly.
With marriages between men and women in England and Wales already at a record low; attributed to reasons such as prioritising education, house buying and travel, this case may present a pause for thought for those thinking about tying the knot.
Statistics show that the average UK wedding costs £27,000, and men and women getting married aged under 20 has declined by 56 per cent since 2005. Rising costs is just one of the reasons that marriage is left on the back burner, as the overall average age of couples marrying also rises year on year. The concept of then being stuck in a “loveless marriage”, alike the case of the Owens’, may prove to be a further deterrent.
With the likes of online divorces and separate financial remedy courts already being trialled, could we see more changes to our legal system for family matters? Parliament are now posed with questions extending beyond the timescales for divorces to be finalised, with this case calling into question the law itself, based on societal and demographic changes.
If you’re interested in any of the topics raised in this article, or for further information, please contact Katie Beal. Alternatively, you can call to speak to one of the team on 0115 9888 777.