Today the Supreme Court has unanimously, although “with reluctance”, refused the appeal of Mrs Owens to obtain a divorce based upon her husband’s unreasonable behaviour.
The law at present is set out in the Matrimonial Causes Act 1973 and only allows a person to obtain a divorce if one of the five following facts are made out:-
a) Your spouse has committed adultery
b) Your spouse has behaved in such a way that it would be unreasonable to expect you to continue living together.
c) Your spouse has deserted you for a continuous period of 2 years or more
d) You and your spouse have been living separately for 2 years or more and your spouse agrees to the divorce.
e) You and your spouse have been living separately for 5 years or more, whether or not your spouse consents to the divorce.
Therefore as the law currently stands, if a spouse wishes to obtain a divorce within the first two years of separation, they must allege that their former partner has committed adultery or behaved unreasonably. Mrs Owens attempted to proceed with the latter option. Mr Owens denied those allegations and actively defended the divorce to a final contested hearing, which from 2016 statistics happened on only 17 occasions in the entire country. Mrs Owens’ attempts simply to obtain a divorce has unfortunately led to protracted litigation to the Supreme Court which has now ruled in Mr Owens’ favour, affirming that in the Court’s view Mrs Owens could reasonably be expected to live with her husband even though she does not wish to and the marriage has irretrievably broken down. At present, the only way that Mrs Owens can now obtain a divorce is to wait until she has been separated from her husband for more than 5 years.
This decision is expected to draw considerable criticism of the current legislation and the family law practitioner’s group Resolution has already called for an immediate change in the law to introduce “no fault” divorces. The Supreme Court has itself in its judgment called upon the Government to consider a change the law to enable those in Mrs Owens’ position to obtain a divorce. It is hoped that the Government will take those views into account in urgently reconsidering whether the law as set out in the 1973 Act remains fit for the 21st Century.