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Divorce Law - In Desperate Need of Reform?

on Thursday, 02 August 2018.

In the case of Owens v Owens [2018] UKSC 41, the Court of Appeal have expressed the view that current divorce law is antiquated and in need of change.

Tini Owens (68) and High John Owens (80) married in January 1978 and separated in February 2015, some 37 years later. Together they had two children, both of whom are now adult and independent.

The issue in this case is the interpretation of the law which allows a spouse to divorce on the basis of an irretrievable breakdown of the marriage. In this case Mrs Owens petitioned against Mr Owens on the basis of his unreasonable behaviour. In this country the only ground for divorce is an irretrievable breakdown of marriage as a result of one of the five facts:

  • adultery
  • unreasonable behaviour
  • two years separation following desertion
  • two years separation with consent
  • five years separation (no consent required)

Mrs Owens issued a petition on the basis of Mr Owens unreasonable behaviour, which contained examples such as:

  • mood swings
  • lack of love care and affection
  • prioritising his work over their home life

Mr Owens objected, stating that the particulars listed were just behaviours which are not out of the ordinary in the course of any marriage. At the first hearing Mrs Owens was asked to provide further examples of the behaviour to support her claim that there was an irretrievable breakdown of the marriage. The Judge at the hearing initially stated that he did not consider that the particulars provided and the supporting evidence given were sufficient.

Mrs Owens appealed to the Court of Appeal, who agreed with the Court in the first instance, although commented that they felt the trial Judge should have gone through each and every allegation. Mrs Owens then appealed to the Supreme Court who delivered their decision on the 25 July 2018. They confirmed again that they agreed with the Court in the first instance, and that of the Court of Appeal. Mrs Owens appeal was dismissed.

The Supreme Court expressed in their Judgement that they felt current divorce law is antiquated and in need of change, but that their role is to interpret the law, not change it. They urged Parliament to review the law and to move it forward in line with modern times. Society has moved on since divorce law was introduced 50 years ago, and it is clear that the current law leaves Mrs Owens stuck in a loveless marriage, at least until February 2020 when she can divorce Mr Owens on the basis of five years separation. 

Professionals have tried not to draft particulars which are overly aggressive in an attempt to allow parties to bring their marriages to an end and resolve matters in an amicable manner. However, the case of Owens v Owens serves as a reminder that lawyers should consider their drafting carefully to ensure clients are not left in the position that Mrs Owens now finds herself in. This case also highlights how important it is that law is reformed in this area as soon as possible.


For expert legal advice on divorce and family law matters please contact Lucy Barr in our Family Law team on 0121 227 3715.