‘Irretrievable breakdown’ to be considered by the Supreme Court
We featured the Court of Appeal’s decision in Owens v Owens on our blog a few weeks ago. The judgement that, as a matter of law, the marriage between Tini Owens and her husband Hugh had not ‘irretrievably broken down’ was a blow to those of us who see the urgent need for a ‘no fault’ divorce to be introduced into family law. However, the story continues, as Mrs Owens has now been granted leave to appeal to the Supreme Court.
Grounds for divorce
In order for a divorce to be granted by the courts, there must be an irretrievable breakdown of the relationship. The irretrievable breakdown can be demonstrated in one of 5 ways: adultery, unreasonable behaviour, desertion, and separation – either for 2 years when both parties consent , or for 5 years if one party does not.
In this case, Tini Owens argued that her husband’s unreasonable behaviour was sufficient to demonstrate the irretrievable breakdown of the marriage. Although the couple had been separated for 2 years, Mr Owens did not (and still does not) consent to the divorce. This left Mrs Owens with the prospect of waiting until the couple reach 5 years’ separation before she could achieve the legal dissolution of their marriage, unless she could convince the court of her husband’s unreasonable behaviour. In a decision that surprised many, the court did not agree that Mr Owens’ behaviour was ‘unreasonable’.
The Court of Appeal’s decision
While the Court of Appeal appeared to agree that Mrs Owens was unable to live with her husband, they found, as a matter of law, that they could not allow her appeal and grant the divorce she hoped for. The judge who originally dealt with the divorce application had made the correct findings of fact in relation to ‘unreasonable behaviour’ and irretrievable breakdown – and had applied the law correctly. In those circumstances, the Court of Appeal could not do anything but refuse the appeal, even though it left Mrs Owens in limbo.
The appeal to the Supreme Court
At the time of writing, the date for the Supreme Court hearing has not been set. However, the basis for the appeal is that there has been a misinterpretation of the Matrimonial Causes Act 1973 – that it is wrong to have to find a respondent’s behaviour ‘unreasonable’ – the court needs only find there has been behaviour by the respondent (in this case, Mr Owens) such that the petitioner cannot be reasonably expected to live with him. If the Supreme Court agrees, Mrs Owens should get her divorce without having to wait another couple of years to hit the 5 year point.
The decision of the Supreme Court will be of great interest to family lawyers. Of course, the appeal may fail, in which case, Mrs Owens will remain married. If the appeal is granted, though, it will be the strongest signal ever to the Government that the law needs to change.
The clear need for a ‘no fault’ divorce
It is a sad indictment of our legal system that this couple are having to play out their divorce so publicly and are being forced to raise allegations of behaviour in order to (attempt) to succeed with a divorce. No one should be forced to remain in a marriage that no longer exists simply because they haven’t satisfied the legal criteria to obtain an immediate divorce. This case is a clear example of why ‘no-fault’ divorce should be a feature of modern society allowing couples to decide when their marriage is over without resorting to blame and the resulting conflict and animosity that creates.
We’ll keep you updated as the appeal progresses, and bring news of the outcome as soon as we can. In the meantime, you can find out more about the Resolution campaign for a no-fault divorce here. If you have any questions about this case or about divorce in general, please get in touch.