Swati Somaiya, head of Family Law at Spearing Waite solicitors in Leicester, takes a look at the case of Owens v Owens.

News this week that the Supreme Court has dismissed Tini Owens’ case to divorce her husband of 40 years raises an important question: is it time for Parliament to change the law to allow no-fault divorces?

What happened

The UK’s highest court dismissed an appeal by a woman who was seeking a rapid divorce from her husband.

Tini Owens, 68, wants to divorce her 80-year-old husband Hugh alleging that their relationship is “loveless” and that she felt “profound and enduring unhappiness” and had over many years grown apart from him. She also said Hugh had behaved unreasonably and that she should therefore be allowed to end her marriage. Hugh, however, refuses to agree to a divorce and denies her allegations about his behaviour.

Mrs Owens filed a petition for divorce when the couple separated in 2015, but Mr Owens contested the petition saying the marriage had been successful and that they still had a “few years” to enjoy together.

Grounds for divorce

Under English law, courts are not permitted to grant a divorce unless the petitioner can prove at least one of the five reasons for divorce. These are: adultery, unreasonable behaviour, desertion, two years’ separation with consent, or five years separation.

For a so-called rapid divorce (within the first two years of separation) there are only two reasons: adultery and unreasonable behaviour.

What the Supreme Court said

The Supreme Court said it dismissed the appeal from Tini “with reluctance”.

In her ruling, Lady Hale, president of the Supreme Court, described Owens v Owens as a “very troubling case” but said she “reluctantly” dismissed the appeal.

She said: “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.”

Lord Wilson, another justice, said the case generated “uneasy feelings”.

What does it all mean?

Mrs Owens will have to remain married to her spouse until 2020 when the pair will have been separated for five years.

This case brings into sharp focus a pressing need for Parliament to repeal the current law on divorce, which has remained unchanged since the introduction of the Matrimonial Causes Act in 1973.

The current law for rapid divorces relies on adultery or unreasonable behaviour. Even though Tini alleged unreasonable behaviour, Hugh denied it and the court decided it was not unreasonable enough.

Petitioners and their advisers must ensure that any allegations of unreasonable behaviour are copper bottomed so that they cannot be disputed. I believe this signals a move towards family lawyers advising petitioners to ensure that their divorce petitions include enough “beefy” examples to persuade a court to allow the divorce to proceed.

But perhaps we need to take more radical action and lobby the Government for a change to the law.

As it stands, the two grounds for a rapid divorce all too often create huge problems in what is already a painful situation for both parties. Making allegations of unreasonable behaviour or adultery can be very wounding for the respondent and extremely upsetting for children.

Steps have already been taken to introduce a no-fault divorce: Parliament passed the Family Law Act 1996, which would have introduced a no-fault divorce law, but the statute was never implemented and repealed.

Owens v Owens introduces the renewed need for further debate about the merits of a no-fault divorce. After all, the judgement highlights the vagaries and inadequacies in law of the fault-based divorce. If it gets to the point when someone is prepared to go all the way to the Court of Appeal to seek a divorce, the differences within the marriage are most likely irreconcilable.

Judges’ hands are tied by divorce laws, which in the Owens’ case has resulted in Mrs Owens being forced to stay married against her will. Mrs Owens cannot move on with her life and gain independence from her husband.

This does not feel fair or right.

For more information or advice, please contact Swati Somaiya.

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