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No Fault Divorce: Owens -v- Owens – An Update

26/07/2018

By way of summary, in this case Mrs Owens filed a petition with the Court to divorce from her husband of 40 years.  Within Mr Owens’ acknowledgment of service, he indicated that he wished to defend the petition and denied that the marriage had irretrievably broken down.

In order to satisfy the court that a marriage has broken down irretrievably, the petitioner must satisfy the court of one of five facts.  Mrs Owens sought to rely on the fact of unreasonable behaviour.  The case was listed at the Central Family Court as a defended suit and came on for hearing on 15th January 2016 before His Honour Judge Tolson QC where Mrs. Owens’ petition was dismissed.  Mrs Owens then appealed the decision which was also dismissed on 24th March 2017 by the Court of Appeal. 

On Wednesday 25th July, 2018, the Supreme Court unanimously rejected the appeal, meaning that Mrs Owens must remain married.  Simon Beccle, Mrs Owens’ solicitor, has said that Mrs Owens was “devasted” by the decision and “cannot move forward with her life”. 

The Supreme Court President, Lady Hale said “I have found this a very troubling case. It is not for us to change the law laid down by Parliament - our role is only to interpret and apply the law that Parliament has given us.”  One Supreme Court judge also said that she had reached her conclusion with “no enthusiasm whatsoever” but that Parliament would have to decide whether to introduce no-fault divorce on demand.

Lord Wilson in the Supreme Court judgment commented upon Mrs Owens’ initial divorce petition, and what the court of first instance stated in relation to the same:

“The judge remarked that… this initial draft “lacked beef”. That should have been a compliment, not a criticism. Family lawyers are well aware of the damage caused by the requirement under the current law that, at the very start of proceedings based on the subsection, one spouse must make allegations of behaviour against the other. Such allegations often inflame their relationship, to the prejudice of any amicable resolution of the ensuing financial issues and to the disadvantage of any children. Thus for many years the advice of the Law Society, now contained in the second guideline of para 9.3.1 of the fourth edition (2015) of the Family Law Protocol, has been:

“Where the divorce proceedings are issued on the basis of unreasonable behaviour, petitioners should be encouraged only to include brief details in the statement of case, sufficient to satisfy the court …”

In most cases, clients are reluctant to include details of all the misgivings of their spouse and opt to file as ‘soft’ petition as possible in order to try and encourage an amicable resolution of the divorce and financial proceedings.  The issue of whether England and Wales should have a system of no fault divorce has received increasing levels of support from the public and leading members of the family law community.  However, the only possibility for a couple to get a divorce without blame is relying on the fact of two years separation.   For many, the wish to move on with their lives rules out this option.

The only option now for Mrs Owens to divorce her husband is to wait until 2020 whereby she can rely of the fact of five years separation.   Mrs Owens’ solicitor said she had hoped the Justices would make a decision which would be “forward thinking and fit with the current social mores”.  This decision by the Supreme Court will no doubt encourage further discussion of this topic, and whether the time has surely come for a no-fault divorce system to be introduced.   

Wendy Hopkins Family Law Practice provides a range of services and we specialise in divorce. If you need help or advice with divorce or any other family law matter, contact us today to speak with one of our expert lawyers.

Telephone: 029 20 34 2233
Email: enquiries@wendyhopkins.co.uk
Address: 13 Windsor Place, Cardiff, CF10 3BY

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