Today’s Supreme Court ruling in the Owens v Owens case may lock unhappy husbands or wives into a further five years of marriage if only one partner wants a divorce warns divorce lawyers at Moore Blatch.
Current UK divorce law dates back to 1st January 1974 when the average house cost ¬£9,927 and McDonald’s opened its first branch in the UK. It is now not fit for purpose, but until it is changed it could result in one partner not being able to divorce the other for a period of five years if one party objects.
The Supreme Court ruling regarding Mr and Mrs Owen, could lead to two significant outcomes, the first being that a partner could be prevented from starting a new marriage for over five years. It could also mean far fewer international divorce cases happen in the UK, as these often involve rich individuals and the Supreme Court’s decision could conceivably allow the wealthier of the parties to defend a divorce petition and, if successful, delay having to split their assets for up to five years or more.
Under current legislation either one of a married couple can apply for divorce if there has been an irretrievable breakdown of the relationship. This means proving one of the following: adultery, unreasonable behaviour, two years separation and consent by both parties, or five years separation and desertion.
Victoria Walker, partner and divorce expert, Moore Blatch, comments: “The Supreme Court’s decision highlights an urgent requirement to change the divorce law in the UK. We urgently need No Fault Divorce legislation or we will see many more cases such as Mrs Owens who now needs to wait until 2020 when she can try again for divorce on the basis of five years separation. But, there is no guarantee that this will be successful as Mr Owens could defend that for financial reasons. In short our divorce laws are no longer fit for purpose. Our recommendation, and assuming divorce is the only acceptable option for one partner, is seek advice early in order to help address objections to the divorce before they occur.”
Summary facts before the Supreme Court ruling:
Mrs Owens started her divorce in 2015 after being married to Mr Owens for 37 years. She relied on his behaviour as her fact to prove the marriage had irretrievably broken down. To use this ground she needed to show that his behaviour was such that she could not reasonable be expected to live with him. Her examples included that he prioritised work over home life and would often miss family holidays and family events, that he did not provide her with love and attention or affection and didn’t support her in her role of homemaker and mother. She also said that he suffered from mood swings which caused arguments and that he had been unpleasant and disparaging about her to their family and friends.
Mr Owens defended the divorce, something that doesn’t happen very often these days and which most lawyers would advise against. After all, if someone doesn’t want to be with you why force them to be?
His Honour Judge Tolson QC gave judgment in 2016 dismissing Mrs Owens’s petition because although he accepted the marriage had broken down and that she could not go on living with him, he was not convinced that the husband had behaved in such a way that she could not reasonably be expected to live with him. He decided the allegations were flimsy and minor altercations to be expected in a marriage.
Mrs Owens appealed, to the Court of Appeal; Sir James Munby did not allow Mrs Owens’s appeal. In his judgment he said the test was part subjective and part objective. He said one must evaluate what is proved to have happened firstly in the context of this marriage, secondly looking at these particular parties, thirdly in the light of all the circumstances and finally considering the cumulative effect of the husband’s conduct. The court then has to ask itself whether, in light of all of that has the husband behaved in such a way that the wife can’t reasonably be expected to live with the husband.
The Supreme Court has today denies Mrs Owens’ appeal meaning she must remain married to Mr Owens
Resolution and the campaign to reform divorce law
The campaign to reform divorce law continues backed by Resolution, an association of over 5,000 family lawyers, they are campaigning for divorce by mutual consent.
http://www.resolution.org.uk/editorial.asp?page_id=1320 , survey results
http://www.resolution.org.uk/site_content_files/files/talking_points__no_fault_divorce.pdf
