Owens v Owen: Has the time finally come for a ‘no fault divorce’ system?

Owens v Owen: Has the time finally come for a ‘no fault divorce’ system?


Askews Legal LLP are specialist Divorce and Family Law Solicitors in Coventry,  your one stop shop for any Family Law advice.


Most family law solicitors will tell you that defending a divorce is highly unusual and many solicitors will go through their entire careers having never been involved in such a matter.  However, the case of Owens v Owens [2018] UKSC41, serves as a stark reminder that a respondent does have the right to defend a divorce and the Court can reject a petition based on unreasonable behaviour if it does not believe the criteria has been satisfied.


There is only one ground for divorce in England and Wales, and that is that marriage has irretrievably broken down due to one of five factors:


  • Adultery
  • Unreasonable behaviour
  • Desertion
  • Two-year separation (with the consent of the other spouse)
  • 5 years separation (no consent required)


To base a petition on unreasonable behaviour, the petitioner must normally establish 4 to 6 examples of such behaviour and the court must be satisfied that the examples amount to the respondent acting in such an unreasonable manner, the petitioner can no longer tolerate living with them.



In the case of Owens v Owens [2018] UKSC41, the couple had been married 37 years. During this time, they had amassed significant assets, including establishing a business which turned over around 5 million a year and had two children.


Mrs Owens moved out and petitioned for divorce, claiming that Mr Owens ‘is loveless and argumentative’.  The examples she gave of unreasonable behaviour included Mr Owens prioritising work over family and making hurtful and critical remarks about her and to their family and friends.


Mrs Owens admitted having an affair in 2012 and stated that her husband constantly berated her for her past actions. She also said that Mr Owens ‘continued beratement’, including criticising her in front of their housekeeper, rowing with her in the airport shop and not speaking during a meal.


Decision of the High Court


In a shock decision, Judge Robin Tolson QC, sitting in the High Court, rejected allegations that the behaviour described by Mrs Owens amounted to unreasonable behaviour. He stated Mr Owens attitude was simply ‘old school’.


Judge Tolson also described Mrs Owens allegations against her husband as ‘exaggerated’ and ‘at best flimsy’, claiming they were ‘minor altercations of a kind to be expected in a marriage’ and ‘an exercise in scraping the barrel’.  He also found that Mrs Owens was ‘more sensitive than most wives’ and that she had ‘exaggerated the context and seriousness of the allegations to a significant degree’


For his part, Mr Owens said he did not want a divorce, as he had forgiven his wife for the affair and wanted them to live out the remainder of their lives together.


The Court of Appeal decision


Mrs Owens appealed the decision of the High Court on the grounds that Judge Tolson QC had failed to:

  1. That is a apply the law;
  2. Make essential core findings about what the husband had done;
  3. Assess the communitive impact of the husband’s conduct;
  4. Honour her rights under the European Convention of Human Rights, article 8 and article 12.


The Court of Appeal dismissed the appeal. It stated the fact of being in a wretchedly unhappy marriage was not a ground for divorce under English law.  There is no such thing as a ‘no fault’ divorce on demand, even though the modern treatment of unopposed conduct petitions made under Matrimonial Causes Act 1973 Section 1(2)(b) might suggest otherwise.  Where a conduct petition was contested, Courts had to apply the objective test in section 1(3) to the subjective elements of the marriage to establish whether a petitioner could reasonably be expected to live with a respondent.  In this case, the court held Mrs Owens’ allegations were flimsy and fell short of what was required to justify the granting of a divorce.



The Supreme Court Decision:


Mrs Owens was granted permission to take a case to the Supreme Court.  On the 25th July 2018, the Supreme Court, after listening to the case dismissed Mrs Owens appeal and unanimously found that Mrs Owens had failed to establish that the marriage had irretrievably broken down.  The Supreme Court took the opportunity to reiterate the correct enquiry to be applied when considering section 1(2)(b).  The Supreme Court confirmed that steps are:


  1. By reference to the allegations of the behaviour in the petition, to determine what the respondent did or did not do;
  2. to assess the effect which the behaviour had upon this particular petitioner in light of all the circumstances in which it occurred;
  • to make an evaluation as to whether, as a result of the respondent’s behaviour and in light its effect on the petitioner, and expectation that the petitioner should continue to live with the respondent would be unreasonable. Although this test has been applied for many years it will alter to be in line with changes in moral and social values.


The result of the decision, is that Mrs Owens must remain married until 2020 at which point, Mr Owens would have no defence to a petition then brought under section 1 (2)(e) MCA on the basis that they had lived apart for a continuous period of five years.  The justices expressed their regret at their decision, with Lord Wilson saying that there was a question for Parliament in whether the law governing entitlement to divorce remained satisfactory. Lady Hale added ‘I have found this case very troubling.  It is not for us to change the law laid down by Parliament.  Our role is only to interpret and apply the law’.


Ramifications of the decision


Both the Court of Appeal and Supreme Courts decisions have caused an plethora of articles and comments, both in the media and in family law arena.  Many called for the abolition of fault-based divorce petitions, which demand a party to prove adultery, unreasonable behaviour, or desertion.  Scotland is ahead of England and Wales in its approach; it allows divorce after one year of separation.  Indeed, with today’s life expectancy (50 years marriage is a long time if you cannot stand your spouse) and society’s more liberal attitude towards cohabitation and same sex marriage, it seems almost Victorian that people have to prove to the court to have grounds to end their marriage.


Contact Askews Legal LLP now for specialist advice from one of our Family Solicitors in Coventry.


Askews Legal LLP – Solicitors Coventry.