Personal Law
August 24, 2017

Owens v Owens: Time to end the blame game and call for no fault divorce?

Mrs Owens featured heavily in the national press earlier this year after the Court of Appeal refused to grant her a divorce.

The case started in 2015, with Mrs Owens petitioning for a divorce from her husband of 37 years. Mr and Mrs Owens married in 1978 and Mrs Owens moved out of the family home in February 2015.

Mrs Owens asked the Court to grant her a divorce on the ground that the marriage had irretrievably broken, alleging that Mr Owens’s behaviour meant that she could not reasonably be expected to live with him. Mr Owens defended the divorce and in a highly unusual move His Honour Judge Tolson QC refused to grant Mrs Owens a divorce and dismissed her petition. The Judge did find that Mrs Owens could not go on living with her husband but said that the facts that Mrs Owens relied on to seek her divorce were “minor altercations of a kind to be expected in a marriage”.

This decision was upheld by the Court of Appeal last year. It has meant that Mrs Owens will have to remain locked into an unhappy marriage with no way out until she can establish that she has lived separately from her husband for a continuous period of at least five years.

Under current law, a divorce can only be obtained by establishing one of five facts, set out in the Matrimonial Causes Act 1973, which demonstrate that the marriage has broken down irretrievably:

  1. Adultery;
  2. Unreasonable behaviour;
  3. Desertion;
  4. Two years separation with consent; and
  5. Five years separation (with no requirement for consent).

As two of these facts require the parties to have been separated for some years and a third requires desertion for a continuous period of at least two years, if a party seeks a divorce straight away, they must rely on one of the fault-based facts. This can mean that an already difficult process is exacerbated where people who want to dissolve their marriage feel compelled to exaggerate their spouse’s behaviour in order to persuade the court that the marriage has irretrievably broken down.

Mrs Owens has now been given permission to appeal to the Supreme Court which has reignited calls for a no fault divorce system to be implemented in England and Wales as a matter of urgency.

Commenting on the case, Anila Naeem, Senior Family Solicitor at Berry & Lamberts said:

“Mrs Owens’ case reinforces the need for a no fault divorce system which many would find more reflective of modern society and would also lessen the burden on the family courts, reduce costs and promote a more constructive way to move the whole process forward. It is important to note that the vast majority of divorces are not defended and even if they are, very rarely go to trial. The Law Society’s Family Law Protocol encourages the drafting of law petitions based on behaviour to only include brief examples of such behaviour sufficient to satisfy the court. The decision in the case of Owens flies in the face of such recommendations. It is highly likely that if Mr Owen had not defended Mrs Owens’ petition that the court would have allowed her the divorce she wanted.”

For a confidential discussion please contact Anila by telephone on 01732 460565 or by email on:

The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. The law may have changed since this article was published. Readers should not act on the basis of the information included and should take appropriate professional advice upon their own particular circumstances.

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