Whose blame is it anyway…

Last month saw the case of Owens -v- Owens come to the Supreme Court, and with it the growing call for divorce reform and the introduction of a no fault option.

In the case of case of Mr and Mrs Owens, Mrs Owens applied for a divorce on the basis of Mr Owens’ unreasonable behaviour.  Instead of allowing the divorce to proceed uncontested, Mr Owens chose to defend Mrs Owens’ divorce petition disputing the allegations of his unreasonable behaviour which Mrs Owens had set out.

When the matter came to court, the High Court and the Court of Appeal both rejected Mrs Owens’ divorce petition on the basis that Mr Owens’ behaviour appeared to be in line with what was to be expected in married life.

Mrs Owens subsequently took her case to the Supreme Court for determination.

If the Supreme Court finds in Mr Owens’ favour then Mrs Owens will potentially be tied into the marriage until 2020 when she and Mr Owens would have been separated for 5 years.

Is it right to keep one spouse locked into a marriage which they would like to get out of?

Under the current divorce law a spouse wanting a divorce must be able to demonstrate that the marriage has irretrievably broken down.  This can be proved in one of five ways.  Three of these ways require allegations of fault; adultery, behaviour or desertion (for two years).  The non-fault based ways require a couple to have been living separately and apart for either two or five years.  A two year separation requires the consent of both parties, whereas a five year separation does not.  Five years is however a long time to have to be tied into a loveless marriage.

The case of Owens and Owens is quite unusual in that Mr Owens chose to defend the divorce.  Had he not done so then it is likely the divorce would have been granted as a matter of course and the case would have been unremarkable.  As Mr Owens chose to defend the divorce and dispute the allegations of his unreasonable behaviour, the allegations have been subject to greater scrutiny in order to test whether they actually meet the standard required for a divorce.  Both the High Court, and the Court of Appeal, did not consider them to meet such a standard.

Divorce reform and the introduction of a no fault divorce option would potentially avoid cases such as Mr and Mrs Owens’.  The current fault based divorce system was created a long time ago.  This system is now increasingly seen as being outdated and unfair, often bringing with it acrimony which undoubtedly has the resulting effect of causing greater disputes in relation to children and money.

Divorce is already a stressful and emotionally demanding process without the law requiring couples to find fault with each other.  Couples money, time, and emotions could be much better invested by an encouragement to work together instead of being polarised apart.

Whatever the outcome in Owens and Owens, the Supreme Court will be unable to fix the underlying problem.  A change in the actual law requires an act of Parliament.  Hopefully however the case will serve to keep this issue in the public eye and reform may one day be achieved.

Posted by Matthew