Ward Hadaway family law expert, Sarah Crilly, looks at a divorce case which hit the headlines recently after the Supreme Court ruled that a 68-year-old woman must remain married to her husband.
Currently in England and Wales it is impossible to be divorced unless you issue a petition based on one of five facts, namely, adultery, unreasonable behaviour, desertion, two years separation with consent or five years separation.
Unlike America no-fault divorces are not possible in this jurisdiction. The recent case of Owens v Owens and the Supreme Court’s decision has highlighted the need for Parliament to take action to remove unnecessary conflict in divorce cases.
Mrs Owens petitioned for divorce citing her husband’s unreasonable behaviour and some examples of her allegations included not being shown love and affection, lack of support for her role as a homemaker and prioritising his work over her home life.
These types of allegations are often seen in petitions but the husband defended the divorce. The wife amended her petition to include more examples but the Judge rejected her petition saying the examples she had given were not enough and of a kind to be expected in marriage.
Mrs Owens appealed to the Court of Appeal and they dismissed it agreeing with the previous Judge for the same reasons. The matter came before the Supreme Court who “reluctantly” dismissed her appeal. Mrs Owens therefore has to wait five years until she can be divorced.
The case has produced great reaction in the Press and among commentators. Attempts to bring legislative effect to nofault divorce came close in 1996 with the Family Law Act which was then aborted.
For practitioners and parties alike having to blame the other spouse adds additional costs and conflict in what are already stressful and difficult times. Sometimes fault is not relevant to the division of assets, yet a couple can’t get divorced unless there is unreasonable behaviour.
In order for behaviour to be relevant to the split of assets there has to be conduct which is gross and obvious whereas the usual test on a divorce petition is that a party must have behaved in a way that the other spouse cannot reasonably be expected to live with them. It certainly does not have to be gross and obvious.
The Supreme Court felt the previous Judicial decisions were correct in their application of the law as set down in the Matrimonial Causes Act 1973 and it was not their job to change the law.
Mrs Owens must remain married to a man she does not love and is estranged from. A Dickensian position in anyone’s view. To use our outgoing President of the Family Division’s words, in his recent commentary encouraging courts and the profession to embrace the modern world of technology to provide better access to Justice, “we have got to get a grip”.
