The recent case of Owens v Owens [2017] EWCA Civ 182 has been subject to much controversy; in short due to a judge refusing to grant a wife of almost 40 years a Decree Nisi as he did not agree that what she described to be her husband’s unreasonable behaviour, was unreasonable. The Judge felt that the wife’s complaints were to be expected in a marriage of that length.

The parties married in 1978 and separated in February 2015. The Wife filed her divorce petition on the basis of her husband’s unreasonable behaviour, and felt therefore that the marriage had irretrievably broken down. The husband contested this.

The reasons Mrs Owens gave for her petition were that the marriage had become loveless, argumentative and there had been infidelity (albeit on her part). However, the judge rejected these grounds stating that her ‘flimsy’ allegations were “minor altercations of a kind to be expected in a marriage”. This judgement, surprisingly or not, was upheld in the Court of Appeal where it was reiterated that a mere unhappy marriage will not be enough for a successful divorce petition.

In the past, Petitioners have not had to worry about the Court granting a decree of divorce based on unreasonable behaviour as unreasonable behaviour is not defined by the Matrimonial Causes Act and therefore the test has been subjective i.e. is the behaviour viewed by the Petitioner as unreasonable and does the Petitioner find it intolerable to live with the Respondent. As a result statement of case have been tempered to prevent the petition being contested, or ruining the future relationship between the parties (often for the sake of the children). Perhaps now Petitioners will have to be less gentile in their statements of case and ‘go all out’ in order to get the divorce in the first place.

This approach would not be supported by the Law Society or Resolution, bodies which both promote an amicable approach to divorce, until legislation is changed to allow for a blameless divorce. Many still seek to reduce emotional and financial impacts of divorce and this could be a step back in terms of reforming the law.

Despite the judge ultimately possessing the power to make this decision, and despite the fact his decision is altogether lawful and applies correctly – is it right for judges to condemn couples to living within unhappy marriages based on subjective elements? To us this case highlights the arguments against our current fault-based system of divorce and critics are calling for need to reform the current archaic laws.

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