This blog post relates to previous divorce laws. On 6 April 2022, the Divorce, Dissolution and Separation Act 2020 was implemented, heralding no-fault divorce. Read more in our blog post: No-fault divorce – the end of the blame game

To the frustration of many family lawyers, who strive to help clients end unhappy marriages with as little blood on the walls as possible, the Supreme Court has today rejected Tini Owens application to divorce her husband of 40 years.

Why did Mrs Owens want a divorce?

Mrs Owens had issued a divorce petition based upon, what is often cited as, her Respondent husband’s unreasonable behaviour. Those who want a divorce must prove that a marriage has broken down irretrievably (the only ground for divorce), but to do so they have to demonstrate that one of five facts exists.

Read more: What are the grounds for divorce in the UK?

In this instance, Mrs Owens relied upon the fact that her husband had “behaved in such a way that [she could not] reasonably be expected to live with [him]”. For many years, perhaps unwisely, those seeking a divorce have been told that, unless they have lived apart for at least 2 years, they will have to demonstrate either that their partner has committed adultery or “behaved unreasonably”.

Why has the divorce been denied?

The President of the Family Division calculated that defended divorces amount to only 0.015% of all Petitions filed, which equates to about 17 contested divorces in any given year. The practice of the Courts in recent years has resulted in almost all of these contested divorces being granted, often after relatively brief hearings.

The Owens case was no different in that it had been agreed before the Hearing that only Mr and Mrs Owens would give evidence, so there was no third party to corroborate some of the allegations Mrs Owens made.

Many lawyers were astounded when Mrs Owens’ petition for divorce was refused. This is on the basis that, although the Judge accepted that the marriage had broken down irretrievably (the grounds for divorce), Mr Owens’ behaviour had been exaggerated, that Mrs Owens was more sensitive than many wives and that the specific examples, upon which the decision was made, may have merited criticism of Mr Owens, but did not mean that Mrs Owens “could not reasonably be expected to live with” her husband.

However, this decision has now been upheld by the Supreme Court.

Anyone seeking a divorce based on their spouse’s behaviour has been reminded that the test is not simply a subjective one, that is, what the impact of the behaviour has been upon the Petitioner. It is also an objective one, in particular, is the Respondent’s behaviour such that the Petitioner, taking in to account their particular sensitivities and nature, cannot reasonably be expected to live with their spouse?

Whilst, to many, the distinction may seem unnecessary, particularly if the marriage has broken down, the impact upon Mrs Owens, and anyone seeking a divorce based upon their partner’s behaviour, is significant.

What are the implications?

Resolution, the organisation of family lawyers committed to trying to take the heat out of the divorce process, has warned of a “divorce crisis”. It has called on politicians from all parties to back measures to reform what they have called outdated laws. Indeed, the Supreme Court made it clear that it too was troubled by the case and, unusually, commented that Parliament may wish to reconsider whether to replace a law which denies Mrs Owens a divorce.

Whether Parliament will respond whilst in the middle of Brexit negotiations is to be doubted, but the call for a no fault based divorce process is likely to be amplified by this decision.

For many family lawyers, there will be concern that this judgment will give rise to those seeking a divorce making more serious, or fuller, allegations about their spouse’s behaviour. Experience suggests this is likely to impact upon parents’ ability to reach agreement about arrangements for their children, or upon their ability to settle future financial arrangements. If this is the case, it is to be regretted.

Read more: What is a clean break order in divorce?

What now for Mrs Owens?

In the meanwhile, Mrs Owens will have to wait until at least February 2020, at which point she will have lived apart from Mr Owens for five years, before she can seek her divorce.

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