Today, the Supreme Court announced its Judgment in the case of Mr and Mrs Owens, where Mrs Owens was appealing against the decisions of two previous courts to refuse her a decree of divorce.
The Court of Appeal had previously concluded that in reality the marriage between Mr and Mrs Owens had broken down irretrievably but felt it was not in a position to agree that the original trial judge was wrong.
The Supreme Court had to decide correct interpretation of Section 1 of the Matrimonial Causes Act 1973, and in particular the correct interpretation of what is known, colloquially, as “unreasonable behaviour”.
The Act provides that if Mrs Owens was able to satisfy a court that her husband had behaved in such a way that she could not reasonably be expected to live with him, then she would be entitled to a divorce.
The Supreme Court decided that the correct approach was:
- To decide what the husband did or did not do.
- Then assess the effect of that behaviour on his wife.
- To make an evaluation as to whether, as a result of that behaviour and its effects upon her, to expect her to continue to live with him would be unreasonable.
The court’s view was based upon previous cases that had been decided over a long period of time and, while they expressed reservations about the way in which the original trial judge dealt with the hearing, they could not overturn the decision.
Nonetheless, the President of the Supreme Court, Lady Hale, gave sufficient misgivings to come to the conclusion that it would be best for the appeal to be granted and the case heard all over again. However, that was not something which either of the parties wanted and so she agreed that the appeal would have to be dismissed.
Mrs Owens will, therefore, have to wait until February 2020 to start proceedings for divorce all over again based upon the fact that she and her husband will, by then, have been separated for 5 years and Mr Owens will not be able to defend those proceedings.
The ramifications of this judgment are enormous.
Firstly, it is going to make it much more tempting for husbands or wives to defend divorce proceedings.
Secondly, if that is correct, the whole process is going to be far more expensive.
Most importantly of all, the emotional costs and the emotional damage to not only the parties but to their children are bound to be increased considerably.
Parliament must now urgently look at the state of our law which dates back to 1969 and introduce “no-fault divorce” without any further delay.
It is a complete farce when the Court of Appeal accepts that Mr and Mrs Owens’ marriage had broken down irretrievably but Mrs Owens cannot obtain a divorce.
Lastly, we all need to consider, what right the state has to prevent a couple divorcing when the marriage has clearly broken down.
25 July 2018