Owens -v- Owens SC Judgment
Article written By Diana Bastow, Senior Associate in our Matrimonial and Family law team
On Wednesday 25 July 2018 the Supreme Court handed down their judgment in respect of the case of Owens v Owens.
This concludes Mrs Owen’s unsuccessful three year battle to be allowed to proceed with her Divorce Petition based on section 1 (2) (b) of the Matrimonial Causes Act 1973, namely that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent;
Practitioners and clients have often relied on section 1 (2) (b) of the MCA 1973 in order to obtain what is referred to as a “quickie divorce” in the media.
Most clients, once they have decided that their marriage has ended, wish to proceed with issuing a Divorce Petition as quickly as possible. In England and Wales there is only one ground for Divorce and this is the irretrievable breakdown of the marriage. The Petitioner must then satisfy the court of one or more of the following facts:-
(a)that the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent;
(b)that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent;
(c)that the respondent has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petition;
(d)that the parties to the marriage have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition (hereafter in this Act referred to as “two years’ separation”) and the respondent consents to a decree being granted;
(e)that the parties to the marriage have lived apart for a continuous period of at least five years immediately preceding the presentation of the petition (hereafter in this Act referred to as “five years’ separation”).
The majority of clients do not have enough evidence to support a Petition based on adultery and do not wish to wait for two or five years before issuing their Petition. This is why citing the other parties behaviour has been a popular fact to rely on. In order to try and keep matters amicable practitioners advise their clients to rely on a soft set of behaviour examples which will often be agreed with the other side prior to being issued at court.
The majority of Divorce Petitions that rely on behaviour will not face the scrutiny of the court but what happens when the behaviour is challenged by the other party. This is what happened to Mrs Owens.
Mr and Mrs Owens married in 1978 and separated in Feb 2015. She filed her petition on 6 May 2015 citing his behaviour and that she could not be reasonably be expected to live with him.
Mr Owens decided to defend the petition and the matter was determined by HHJ Tolson QC on 15 January 2016 who found that the husband had not behaved in such a way that the wife could not reasonably be expected to live with him and dismissed the petition.
Mrs Owens then appealed this decision and the matter went before Sir James Mumby, the then President of the Family Division, Lady Justice Hallett and Lord Macur.
All three judges agreed that that the decision of the trial judge should be upheld and the Divorce Petition dismissed.
Lady Justice Hallett said in her agreement with Sir James Mumby
“With no enthusiasm whatsoever, I have reached the same conclusion on this appeal as my Lord, for the reasons that he gives. It was the trail judge’s duty, and ours, to apply the law as laid down by Parliament. We cannot ignore the clear words of the statute on the basis we dislike the consequences of applying them. It is for Parliament to decide whether to amend section 1 and to introduce a “no fault” divorce on demand; it is not for the judges to usurp their function”.
The Supreme Court has now dismissed Mrs Owens appeal “she must remain married to Mr Owens for the time being”.
As Mr Owens is not agreeable to proceeding with a Divorce, and will therefore not consent to a Petition based on two years separation with consent, Mrs Owens only option is to wait until they have been separated for 5 years. This will mean that she will have to wait until 2020 before she can issue her Divorce Petition and no doubt this will then mark the beginning of a lengthy battle over their finances.
So what does this mean for couples wishing to Divorce in the future. Well until such time as there is a change in the law to a “no a fault” divorce there will need to be careful consideration of the drafting of the behaviour particulars and to demonstrate that the petitioner cannot reasonably be expected to live with the respondent. However, if the particulars can be agreed between them they can continue with a “soft” petition as it will not come under the scrutiny of the court.
If you have any queries or concerns relating to your legal rights in relation to Divorce, Dissolution and Finances then please contact our matrimonial team on 0207 408 8888.