Today, the Supreme Court unanimously ruled that Mrs Owens must remain married to Mr Owens.

The appellant, Mrs Owens and the Respondent, Mr Owens married in 1978 and have two children. Since 2012, Mrs Owens had been contemplating a divorce. In May 2015, Mrs Owens left the matrimonial home and issued a divorce petition, claiming that the marriage had broken down ‘irretrievably’. She claimed that Mr Owens’ conduct was so unreasonable that Mrs Owens could not be expected to live with him.

The petition for divorce drafted in 2015 was to relieve both parties from their intolerable marriage. However, Mr Owens responded to the petition with a defence, and argued that the marriage had been ‘largely’ successful.

A case management hearing held in October 2015 found that because Mr Owens had entered into a defence to the petition, Mrs Owens should expand her allegations regarding Mr Owens’ behaviour. Mrs Owens amended the petition and included 27 examples of Mr Owens moody, argumentative and derogatory nature.

The matter then proceeded to a hearing.

At the hearing, counsel for Mrs Owens focused on only a few examples of Mr Owens behaviour and the judge found that although the marriage had broken down, the examples of Mr Owens behaviour had been exaggerated by Mrs Owens and were isolated incidents. Therefore, Mrs Owens petition was dismissed because the legal test had not been satisfied on the basis that Mrs Owens had failed to prove that she could not possibly be expected to live with Mr Owens.

Mrs Owens appealed to the Court of Appeal and again to the Supreme Court.

Today, the Supreme Court agreed with the Court of Appeal to dismiss the matter. The Court held that the Matrimonial Causes Act 1973 must be ‘conscientiously’ applied, stating that divorce petition based on unreasonable behaviour usually succeed, and it is rare for a spouse to defend the petition.

The Supreme court stated that the correct test under the current law is to determine the following; 1) what the respondent (Mr Owens) did or did not do; 2) to assess the effect this behaviour has upon the petitioner in light of all the circumstances; 3) to evaluate whether as a result of the behaviour and the effect on the petitioner, it would be unreasonable for the petitioner to continue to live with the respondent. The Supreme Court held that the judge at the first hearing had understood and applied this test correctly. The Supreme Court stated that the judge reached the relevant conclusion and that Mrs Owens complaints had been heard and dismissed by the Court of Appeal. Therefore, the Supreme Court found the judge at first instance to have followed the correct legal analysis and the Supreme Court could not intervene.

In particular, Lady Hale stated that the case depended on the cumulative effect of a ‘great many small incidents’ and suggested to allow the appeal and to send the case to the first-instance court to be tried again. However, Lady Hale appreciated that this was not something Mrs Owens was seeking, and reluctantly agreed that the appeal should be dismissed.

Similarly, Lord Mance stated it would be inappropriate for the Supreme Court to find that the judge at first instance had not reached a fair investigation and conclusion.

This is a case that highlights how following the black letter law leads to rather unfavourable results.

In England & Wales, unless you have been separated for two years, one party has to place blame on the other in order to issue divorce proceedings. There are calls for a ‘no-fault’ divorce, which would avoid a situation where one party has to cite reasons of unreasonable behaviour in order to get divorced. All of this encourages acrimony within the separation, which can hinder effective discussions about children and finances.

Resolution, the largest organisation of family lawyers in the UK, are calling for reform of the current law. There is pressure on the government introduce ‘no fault’ divorce, which, if introduced, would avoid another case like the one involving Mr and Mrs Owens.

All of our family lawyers are members of Resolution and are dedicated to resolving disputes in as amicable way as possible.

If you require advice on matters surrounding divorce, please call us on 0161 941 4000 and ask for our Family law department or email us at lawyers@myerson.co.uk.

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