To blame or not to blame…

Oct 11, 2018


The September 2017 issue of our newsletter included an article tackling the topic of ‘no-fault’ divorces following the Court of Appeal’s decision in the case Owens v Owens.  One year on, and following Mrs Owen’s dismissed appeal in the Supreme Court, this country’s lack of provision for a ‘no-fault divorce’ is now more than ever a prevalent family law topic. The denial of a divorce for Mrs Owens for another two years has sparked campaigns for a no-fault divorce and an urgent call for reform of the country’s current divorce laws.

The Law

The current law setting out the basis for divorce in England and Wales dates all the way back to a 1973 statute; the Matrimonial Causes Act. The only ground for divorce is the irretrievable breakdown of marriage. This is proven by one of five facts as follows:

  1. Adultery which the petitioner finds intolerable to live with;
  2. Unreasonable behaviour which the petitioner finds intolerable to live with;
  3. 2 years’ desertion;
  4. 2 years’ separation with consent;
  5. 5 years’ separation (no consent required).

The law means that the only way to divorce in the first two years after a separation is adultery or unreasonable behaviour – both fault based facts requiring one spouse to blame the other for the breakdown of the marriage.

The Owens Case concerned the interpretation of section 1(2)(b) of the MCA 1973 which provides that a petitioner must satisfy the court that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with them.


What happened in the Owens case?

Tini Owens (aged 68) and her husband Hugh Owens (aged 80) have been married for 40 years. Mrs Owens initially consulted solicitors concerning a divorce in June 2012 but this was not pursued.  It was not until February 2015 that Mrs Owens left the family home and in May 2015 she filed her divorce petition based on the grounds that their marriage had irretrievably broken down, due to Mr Owens’ unreasonable behaviour. 

As encouraged by the Family Law Protocol, the petition contained anodyne particulars focussing on Mr Owens being moody and argumentative, not showing his wife love and affection, prioritising his work over their home life and not supporting Mrs Owens’ role as a homemaker. Mr Owens defended the petition and, further to a hearing later in 2015, Mrs Owens was allowed to amend her petition to expand on those allegations.  The petition was significantly inflated with 27 examples of unreasonable behaviour. 

The judge at first instance dismissed Mrs Owens’ petition and described it as ‘hopeless’, ‘flimsy’ and ‘exaggerated’.  Mrs Owens’ appealed the decision but the Court of Appeal rejected the appeal on the basis that the judge at first instance had correctly found that the marriage had not ‘in law’ irretrievably broken down.  Mrs Owens, and indeed many family law practitioners, hoped that her subsequent appeal to the Supreme Court would be an opportunity to find the existing law had been interpreted too narrowly and there was a need for reform.  All five justices, albeit some reluctantly, decided this appeal should also be dismissed meaning Mrs Owens was not granted the divorce. 

The justices considered Section 1(2)(b) and set out the correct three-stage approach to be adopted in interpreting this fact.  This was: 

  • to determine what the respondent did or did not do by reference to the allegations of behaviour in the petition;
  • to assess the effect the behaviour has upon the petitioner; and
  • to evaluate 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.

The Supreme Court made it clear that it is not necessary for the petitioner to show that the behaviour complained of is the cause of the marriage breakdown. In coming to their decision, the concepts of unreasonable behaviour, fault and conduct based petitions were considered and the dismissal of the appeal did not sit easy with some of the judges.  Lady Hale expressed she found it a ‘very troubling case’ but it was judges to interpret the law, not ‘change the law laid down by Parliament’.


What does the Owens decision mean for divorce cases going forward?

Individuals and practitioners may be worrying about whether the decision in Owens will now see an increase in petitioners feeling the need to ‘firm up’ the behaviour particulars to avoid the risk of the petition being rejected.  This may mean petitioners cite more inflammatory and exaggerated allegations which will increase acrimony between the parties.  This is contrary to the practice many family practitioners are accustomed to, which is to advise that petitions should include examples which contain sufficient detail to convince the court but anodyne so as not to inflame matters and prejudice an amicable solution.  This is also the approach encouraged and recommended by the Law Society in the Family Law Protocol and by professional body, Resolution. Practitioners and clients  are in an increasingly difficult position trying to keep a divorce petition as non-confrontational as possible while ensuring that allegations meet the standards set by s1(2)(b).

The majority of justices in the Supreme Court discouraged the idea of firming up petitions however until the law is reformed, the balancing act of keeping the petition as non-hostile as possible whilst still including sufficient particulars to satisfy the courts, remains a concern.

The decision by the Supreme Court not to allow Mrs Owens’ appeal means she must remain unhappily married, albeit living next door, to her husband for the time being.  It is doubtful that she will attempt to issue a further divorce petition using different examples of Mr Owens’ behaviour. It is also doubtful that Mr Owens will consent to a divorce based on 2 years separation.  This means Mrs Owens’ last option is to wait another two years to divorce Mr Owens because by that time, the couple will have been separated for five years, and Mrs Owens will be able to petition for a divorce based on five years separation which does not require evidence of fault nor require Mr Owens’ consent. 

These options are arguably not acceptable in today’s society and are out of touch with changing social values.  Nigel Shepherd, former national chairman, highlights that the decision highlights how it is ‘simply wrong that…anyone who can’t afford to put their lives on hold for two years whilst waiting to divorce is required to apportion blame.  And asking judges to rule on who did what is unacceptable in a modern society’. 

Government have since announced that it is their intention to reform the legal requirements of divorce by introducing “no-fault divorces”. This consultation opened on the 15th September 2018 and closes on the 10th December 2018. The response to the consultation should be published around March 2018. Practitioners and clients should remain hopeful and watch this space for a reform in the foreseeable future.