Supreme Court decision in the case of Owens

Posted 14 August 2018 by Dawn Pennell

Dawn Pennell of Capron & Helliwell solicitors, considers the recent Supreme Court decision in the case of Owens

In July 2017 I wrote about the Court of Appeal decision in this case and wondered whether permission would be sought to take the argument to the Supreme Court.  Well, more than a year on, the Supreme Court has considered it and on 25th July handed down its much anticipated judgement.
Mr and Mrs Owens married in 1978, separated in early 2015 and have two adult children.  Mrs Owens wished to get divorced basing her Divorce Petition on her husband having behaved in such a way which meant she could not reasonably be expected to live with him.  She set out examples of his behaviour.  Her husband defended the divorce.  A Judge agreed the marriage had irretrievably broken down but decided that Mrs Owens had failed to prove her case so her divorce petition was not allowed to proceed.  He found the allegations were really part and parcel of what happens in a marriage and concluded that the allegations were “at best, flimsy”.  Mrs Owens appealed but the Court of Appeal upheld the decision of the original Judge.

The Supreme Court has refused Mrs Owens’ appeal against the denial of her divorce petition.  As a result she is being forced to remain in a marriage which has effectively come to an end in all but name.  So, what will happen now?  Will we be forced to be more aggressive on allegations in divorce petitions?  As divorce lawyers we are encouraged to make behaviour allegations as mild as possible but by doing so now risk them being rejected as inadequate.  If the behaviour allegations are strengthened this conflicts with the approach advocated by Resolution whose members commit to work to an agreed Code of Practice to resolve disputes in a non-confrontational, constructive way designed to preserve people’s dignity.
Resolution has for some time been campaigning to implement no fault divorce.  Will the “blame game” ever end?  Under current law even when a couple has mutually agreed their marriage is over to get divorced they must either assign blame for the breakdown of the marriage or wait a minimum of two years while living apart.  The Ministry of Justice twitter account tweeted on 25th July that the current system of divorce creates unnecessary antagonism in an already difficult situation and that they are already looking closely at possible reforms to the system so … watch this space for more developments.

Dawn Pennell is a Chartered Legal Executive and Collaborative Lawyer dealing with family law matters at Capron & Helliwell.
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This article aims to supply general information but it is not intended to constitute advice.  Every effort is made to ensure that the law referred to is correct at the date of publication and to avoid any statement which may mislead.  However, no duty of care is assumed to any person and no liability is accepted for any omission or inaccuracy.  Always seek specific advice. This article was written on 14th August 2018 and the law may change following this date.

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