Alderson Law’s Family Law specialist, Julie Nicholson shares her thoughts on the recent Owens v Owens case and why we need a change in the law to allow No Fault Divorce.
A divorce can only currently be granted by the courts if the couple can show that their marriage has irretrievably broken down under one of five legal arguments: adultery, unreasonable behaviour, desertion or separation for either two or five years. If there is sufficient evidence to prove one of these conditions then a court can dissolve a marriage. If there is doubt, then the court may refuse the divorce.
This is what happened when the courts refused to grant a divorce to Mrs. Owens in the case of Owens v Owens 2018. Mrs. Owens cited unreasonable behaviour as the cause for her divorce, however Mr. Owens rejected this and ultimately the courts ruled in his favour. Following this, Mrs. Owens took the case to the Court of Appeal and then to the Supreme Court, but both courts again ruled in favour of Mr. Owens.
Despite Mrs. Owens’ claims that her husband’s behaviour was so unreasonable that she could not live with him the courts ruled otherwise, leaving Mrs. Owens in limbo and raising questions about the standard and fairness of divorce law in England and Wales.
The ruling has prompted family law professionals including the UK’s most senior Judge, Baroness Hale, to call on Parliament to change the laws on divorce which have not been updated since the introduction of the Matrimonial Causes Act in 1973.
The Judges presiding over the case and the appeals explained that their role is to apply current law as it stands and not to change the law. Having to allocate the blame as part of our current proceedings makes an already difficult process even more acrimonious. Introducing a ‘No Fault Divorce’ would allow couples to divorce more amicably.
Cultural and social norms have changed during the intervening years including society’s view on same sex marriage, adoption and divorce itself, hence the argument to revise current law and include No Fault Divorce within the Matrimonial Causes Act.
What was considered as unreasonable behaviour at the time this act was passed through Parliament is different to what may be considered unreasonable now, but the individual filing for divorce on the grounds of unreasonable behaviour must still demonstrate that it is not the behaviour itself that is unreasonable but the expectation of continued life together being unreasonable.
Julie Nicholson, Solicitor in the Family Department of Alderson Law said: “The case of Owens V Owens highlights the need for No Fault Divorce to become legally recognised in England and Wales. When one of the the highest profile judges in the country is calling for a change in the law, you need to listen to the arguments they are presenting. It is parliament who must decide and not the courts. No Fault Divorce is a step in the right direction for our law and judicial system.”
Julie Nicholson, Family Solicitor, Alderson Law LLP