Deborah Leask
Partner, Solicitor & Joint Head of Family
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Date Published:30 Jul 2018 Last Updated:11 Apr 2021

Grounds for Divorce – Ripe for Reform?

Family Law

Does the Supreme Court decision of Owens v Owens make it more difficult to get a divorce? Will it now be necessary to wait for 5 years’ separation before issuing a Petition to end an unhappy marriage? What happens if one spouse is completely intransigent and will not accept that it takes “two to tango” to make a marriage work?

Despite popular belief, the law as it currently stands, does not allow a couple to divorce on the grounds of irreconcilable differences unless there has been a separation of two years with both parties in agreement that they should divorce. Most unhappy spouses are not content to wait for 2 years, often for good reason – it allows time for an unscrupulous spouse to manipulate their finances or dispose of assets. Moreover, it keeps an unhappy and separated couple in psychological and financial limbo – not living together but not released from marital ties.

If a divorcing spouse does not want to wait 2 years, he or she must issue their Petition on one of the two fault grounds namely, adultery or, as is commonly referred to, unreasonable behaviour or conduct. What constitutes unreasonable behaviour? This is behaviour of the Respondent which, in the light of its effect on the Petitioner, it would be unreasonable for him or her to live with the other.

It has long been common practice for family lawyers to keep the particulars of behaviour as mild and uncontentious as possible and indeed, it is considered good practice to do so. Where there is no benefit to be gained by citing much more serious allegations of behaviour, why cause unnecessary acrimony? Consequently, having a “quick and violent temper” is replaced by “becomes easily irritable”. Allegations of controlling and dishonest behaviour instead become watered down to “failure to treat the other spouse equally or fairly”. In short, responsible family lawyers put a great deal of effort into diluting otherwise incendiary petitions in the hope that this will lead to a smoother divorce.

So, why has the Supreme Court judgment of Owens v Owens hit the headlines? Mrs Owens sought a divorce from her husband in 2015. In keeping with good practice, her solicitors drafted a mild and pretty innocuous behaviour petition. Despite accepting that the marriage was over, Mr Owens defended the petition, arguing that his estranged wife had not met the requisite test and that his behaviour was all part of the normal cut and thrust of married life. He argued that it was not unreasonable to expect her to live with him.

Unfortunately, for Mrs Owens the trial judge agreed as did the Supreme Court (though with very little enthusiasm).

Where does that leave us then? Is it now harder to obtain a divorce post Owens? Very few divorces are ever defended (0.015%) and prior to Owens the advice given to those hoping to tie their spouses into a loveless marriage was “don’t bother you will lose and will be ordered to pay the costs of a defended divorce”. Unfortunately, the likely impact of this decision is that those petitioning for divorce will not take the risk of a mild behaviour petition as this could backfire unless they are confident that it will go through undefended. Instead, if there are any doubts and when faced with a difficult, irrational and controlling spouse, a detailed and much more hard hitting behaviour petition will be issued to avoid the risk.

This is a setback for couples wishing to keep their divorces as free from acrimony as possible. The only potential good which may come from this case is that Parliament may be pressured to bring our divorce laws into the 21st century by the introduction of no fault divorce.

But, in the meantime, Mrs Owens must remain married to Mr Owens and delay issuing a 5 year separation petition until 2020.

The family department at Ellis Jones Solicitors boasts expert divorce solicitors who are renowned for their work. These family solicitors are on hand to guide you through the process of divorce and advise on the grounds on which you would file for divorce. Contact our family department on 01202 525333 or send an email enquiry to discuss your case.