Review of The Supreme Court case of Owens v Owens

Tini Owens has been married to her husband Hugh since 1978, separating in February 2015, when Mrs Owens left the matrimonial home. Mrs Owens sought a divorce on the irretrievable breakdown of her marriage, grounded on allegations of her husband’s unreasonable behaviour.

Unreasonable behaviour is a ‘fault ground’ whereby one person is essentially ‘blamed’ for the breakdown of the marriage. This ground requires the Petitioner to provide the Court with examples of the Respondent’s conduct towards them

This application, a landmark in terms of being the first time that the Supreme Court has been asked to rule on the issue of divorce itself, rather than financial settlement, was refused by the Court on 25 July 2018.

Giving examples of Mr Owens’ unreasonable behaviour in her divorce petition, Mrs Owens described how she suffered “constant beratement” which included her husband arguing with her in a shop, refusing to speak to her during a meal and criticising her in the presence of third parties.

Mr Owens defended the divorce and maintained that he did not accept the allegations levied against him.

Mrs Owens was initially refused a divorce by the Lower Court, with the Judge stating that the allegations were “exaggerated” and “flimsy” and that Mr Owens’ behaviour was “of a kind to be expected in a marriage”.

Appeals were lodged by Mrs Owens to the Court of Appeal and thereafter to the Supreme Court. Ultimately the conclusion of the Lower Court was unanimously upheld and the divorce application was refused, meaning that, save for a change in Mr Owens’ stance, Mrs Owens will be unable to secure a divorce until after 5 years post-separation, that being 2020.

While Supreme Court President Baroness Hale commented that the case was “very troubling”, she also asserted that “it was not for Judges to “change the law”.

The current main principles governing divorce law in Northern Ireland are as follows:

1. You cannot apply for a divorce in this jurisdiction until you have been married for a period of two years.

2. You must show the Court that your marriage has irretrievably broken down by satisfying one of the available ‘grounds’ for divorce.

The grounds available are:

1. adultery
2. unreasonable behaviour
3. desertion
4. two years’ separation with consent and
5. five years’ separation.

In addition, it must be noted that if the parties have been separated for less than two years, the only grounds available on which to ground a petition for divorce are those of adultery or unreasonable behaviour.

While the grounds of two years separation with consent and five years separation are comparatively easy to demonstrate, the remaining grounds can be much more problematic.

Adultery– if relying on this ground, you must demonstrate to the Court that your spouse committed adultery during the course of your marriage. The ‘co-Respondent’ (person whom which your spouse committed adultery with) can be named in your divorce papers and joined to the proceedings.

Unreasonable Behaviour – you will be required to demonstrate to the Court that your spouse has behaved so unreasonably that you cannot reasonably be expected to remain married to them. There are many possible examples of unreasonable behaviour, including financial control, physical violence, verbal abuse and addiction issues such as alcoholism, drug addiction or gambling.

Two Years’ Separation With Consent – if you have lived separately from your spouse for a period of more than 2 years and your spouse consents to the divorce, you may rely on this ground.

If you and your spouse have continued to reside at the same property during this time but have lived ‘separate lives’, for example in separate bedrooms and without undertaking household duties together or spending time together, this ground may be satisfied.

Five Years’ Separation – Your spouse’s consent is not necessary as this ground is automatically available when you have lived separately for a period of more than 5 years.

Desertion – This ground is rarely cited in divorce proceedings given that in practical terms, it is difficult to prove.

The case of Owens v Owens has led to further calls for a reform of divorce law and a possible introduction of ‘no fault’ divorces. While it remains to be seen whether ‘no fault’ divorces will be introduced, Resolution, a collective of family lawyers in England and Wales, have lent support to this notion, commenting that “Divorce without blame will increase the chances of success for non-court dispute resolution processes as it immediately puts both partners on a level footing. This will reduce the burden on the family court and help government to meet their aim for more people to resolve their problems outside of the courts.”

If you need advice on any of the issues outlined above, please get in touch with our office on 028 90770770 or enquiries@hhdsolicitors.com

Catherine McReynolds

August 2018