The majority of people who get divorced issue a petition (Owens v Owens) based on adultery or ‘unreasonable behaviour’ because the alternative is to have to wait until you have been separated for two years (if your spouse consents) or five years (if they do not). While the press often uses the phrase “quickie divorce” this is journalistic shorthand for a divorce based on adultery or behaviour.
It is extremely rare for a divorce to be defended because most people take the view that if their spouse considers that the marriage is over then they accept that it is over. However, Hugh Owens did not feel that way when his wife, Tini, issued her divorce petition in 2015 (Owens v Owens) based on his behaviour and he defended the divorce petition. The test under the Matrimonial Causes Act 1973 that Mrs Owens had to satisfy the court of is whether Hugh Owens had behaved in such a way that she could not reasonably be expected to live with him.
The trial judge said that some of Mrs Owens’ complaints about her husband’s behaviour were “hopeless”, “scraping the barrel” and “at best flimsy”. He refused Mrs Owens the divorce she wanted and she went off to the Court of Appeal who upheld the judgment. She has now gone off to the Supreme Court with the hearing to take place on 17 May 2018. One of the central issues the Supreme Court judges will have to address is the how to apply the statutory test which can be viewed both as a subjective and an objective test.
There has been a wide scale call for many years for the government to introduce ‘no fault’ divorce where the sole ground for divorce would be to have been separated for a fixed period of time – 12 months is the general consensus as being an appropriate period. A change in the law was planned more than 20 years ago and was drafted into the Family Law Act 1996, but was never enacted by Parliament. While some people who get divorced want to blame their spouse for the breakdown of their marriage in their divorce petition, most would be content for a straightforward ‘no fault’ divorce. Having to attribute blame tends to increase conflict and acrimony.
While the Supreme Court may well criticise the existing law and voice their support for statutory reform, their judgment when it comes out can only be based on the existing statute. Tini Owens may get the divorce she is after, but it will not change the law.
We can only hope that Parliament will find time to time to deal with reforming the law relating to divorce while it is busy worrying about our divorce from the EU.
If you need expert advice on divorce matters, or family relationship issues more widely, please contact Philip in our family team. Alternatively, you can email firstname.lastname@example.org or call 020 7631 4141.