The judgement in Owens v Owens [2018] UKSC 41 has prompted momentum from family solicitors for a no-fault divorce system.

The current law says couples must either live apart for a substantial period of time before they can divorce, or they must make allegations about their spouse’s behaviour which can lead to a search for who is most to blame, therefore placing one party at “fault”.

Owens v Owens

This summer, Mrs Owens was refused divorce because even though the judge ruled her marriage had broken down irretrievably, she had failed to prove that her husband’s behaviour was sufficient to justify a divorce decree.

As the husband defended the petition it went to trial. The wife gave 27 individual examples of her husband’s moody, argumentative or disparaging behaviour. However, the trial judge concluded that despite the marriage having broken down, the wife had provided flimsy and exaggerated examples of behaviour and that those being relied upon were isolated incidents. Therefore, the legal test under s1(2)(b) MCA 1973 had not been satisfied and her application was denied.

The wife tried to appeal the decision, but the Supreme Court unanimously dismissed it, meaning she must remain married to her husband until February 2020 when she will be able to petition for divorce based on 5 years’ separation, as this cannot be defended.

Lord Wilson has expressed disdain for the decision, saying “family lawyers are well aware of the damage caused by the requirement under the current law … allegations often inflame their relationship… to the disadvantage of any children.” He thought the brief details the wife gave of her husband’s behaviour should be commended, not criticised.

Government Reform

On 15 September 2018, the government launched a consultation on reforming the legal requirements for divorce. The aim is to remove fault and focus more on supporting spouses to make arrangements for the future. The purpose is to ensure that the decision to divorce remains a considered one, and that the legal requirements to obtain a divorce do not exacerbate conflict that can harm children. This approach is in line with the wider family justice system, which seeks to help people resolve family issues in a non-confrontational way.

A spokesperson for the Ministry of Justice said the department is ‘carefully considering the implications’ of the judgment as the current divorce system ‘creates unnecessary antagonism in an already difficult situation’.

Myerson is a member of Resolution, which promotes a non-confrontational approach to family disputes, is committed to being constructive and finds solutions that consider the needs of the whole family – in particular the best interests of children. If you require advice you can contact one of our family law solicitors on 0161 941 4000 or email us at lawyers@myerson.co.uk.