Published by: Will Mercer

Court of Appeal divorce ruling will increase calls for a change in the law

The Judgement handed down by the Court of Appeal in the case of Owens v Owens last Friday has again prompted many in the family law profession to call for a change in divorce law.

The three Judges in the Court of Appeal found that there was no reason to interfere with the original decision of the first instance Judge who had decided that the Petitioner (Mrs Tini Owens, who had originally applied for a divorce) was not entitled to a divorce.

Mrs Owens’ divorce petition cited her husband’s unreasonable behaviour as the reason for the irretrievable breakdown of the marriage.  The Court had decided that she had failed to show that she could not reasonably be expected to live with her husband as a result of the behaviour cited by Mrs Owens.  Whilst noting the law might be perceived as unfair, the Court of Appeal agreed with the assessment of the first instance Judge.

The case has attracted much attention in the media as a result of the perceived unfairness to Mrs Owens, who now must wait until a period of 5 years from the date of the parties’ separation has elapsed before she can make any progress with the divorce.

As the law stands, unless the parties are prepared to wait for 2 years after the date of separation, providing both parties agree to the divorce, or 5 years, if the other party does not agree, the party seeking a divorce must show that the marriage has irretrievably broken down by citing the other party’s unreasonable behaviour or adultery.

Many in the profession, including Resolution (a body of family lawyers committed to a non-confrontational and constructive approach to family law cases), have previously called for a change in the law to allow for a “no-fault” divorce.  Resolution argue that having to “blame” the other party for the breakdown of the marriage in this way, makes a particularly difficult time for both parties more difficult and can have irreparable consequences when it comes to the parties attempting to resolve disputes in relation to finances and/or children.

The outcome of Mrs Owens’ appeal is likely to increase those calls to modernise the law in this area, which has been in operation since 1973.

The Judgement can be found here.