What exactly were they arguing about in the Owens v Owens case?

Couple in a cafe

John Bolch shares his views on the case behind the increased calls for no-fault divorce in England and Wales last week.

“Last Thursday the media spotlight was focused on the Supreme Court as Mrs Owens’ appeal against the refusal of the courts to grant her a divorce was heard. This case has led to renewed, and louder calls for the introduction of no-fault divorce in England and Wales.

But what exactly were the lawyers arguing about before the Supreme Court justices? Surely, if the current law says that the husband’s behaviour had to be sufficiently bad as to show that the marriage had irretrievably broken down, and the judge found that it hadn’t, that is the end of the matter?

I suspect that this, or something like it, maybe the view of a lot of people who have been following the case, including many lawyers. To expand the argument, the case is surely just an example of the current law working as it was designed to do, and any change in the law is a matter for parliament, not the courts.

Let’s start with what arguments were put forward on behalf of Mrs Owens. Well, I’ll do that in just a moment, but before I do I think I should quickly set out what the current law says, for the benefit of non-lawyers.

Our current divorce law is set out in the Matrimonial Causes Act 1973, as amended. For the purpose of this post, the relevant law is set out in section 1(2) which says (in relation to divorce petitions based upon the respondent’s behaviour):

“The court hearing a petition for divorce shall not hold the marriage to have broken down irretrievably unless the petitioner satisfies the court … that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent”

That seems at first glance to be quite clear – to get her divorce, the petitioner must satisfy the court that the respondent had behaved in such a way that she could not reasonably be expected to live with him. Obviously, the judge hearing the Owens case was not satisfied that Mr Owens had behaved in such a way that Mrs Owens could not reasonably be expected to live with him, hence Mrs Owens was refused her divorce.

Correct? Well, let us see what the lawyers said (the following is, of course, a very brief summary).

It was pointed out on behalf of Mrs Owens that the judge who originally heard the case accepted as a fact that the marriage had irretrievably broken down, but despite that he felt unable to grant her a divorce, as he did not find that Mr Owens’ behaviour was sufficiently unreasonable.
In other words, the law required the petitioner to establish a minimum level of bad behaviour, and it was for the court to judge whether that level had been reached

This approach, Mrs Owens’ lawyers (including the lawyer for Resolution, who were given leave to intervene in the case) said, involved the judge falling into a ‘linguistic trap’ when interpreting section 1(2). The trap was to believe that the behaviour had to be unreasonable, in the view of the judge, rather than unreasonable from the point of view of the effect it had upon the petitioner. If the judge had taken the latter approach, then he would have seen that Mrs Owens found Mr Owens’ behaviour so unreasonable that she could not reasonably be expected to live with him.

Needless to say, counsel for Mr Owens did not accept this. He said that the judge had applied the law correctly, as courts had understood it for nearly fifty years. In any event, if the law was as suggested on behalf of Mrs Owens, that in effect amounted to a system of ‘divorce on demand’, as any petitioner could simply declare that she could not be expected to live with the respondent, and that was clearly not what parliament had intended when the present law was formulated.

At this point, you may be thinking that all of this is a little bit esoteric. Isn’t the only important thing whether or not the marriage has broken down? Well, yes. And, as you may be expecting, I will finish with the obvious point, which must have been like an elephant standing in the middle of the Supreme Court chamber: that all of this horribly intrusive investigation of what should be the private affairs of a couple could so easily be averted by the introduction of a system of no-fault divorce.”

John Bolch

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

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1 comment

JamesB - May 28, 2018 at 11:47am

She’s no chance. I also don’t see why Resolution are involved, Parliament sets the laws, not Judges, don’t they??????????

The way the law was setup to work? Was for people to divorce using 2 years with consent to allow things to calm and be amicable. Lawyers ramp up their fees and ‘protect and empower’ their clients and at the same time destroying so many lives with their quickie traumatizing divorces, especially the respondents and the children who get hit repeatedly with these things like a plank of wood round the head.

The problem is the politicians setting dodgy law which enable divorces to go through (Wachtel v Wachtel) I believe with stupid reasons.

I agree that it should be if one party calls it, its over, the problem is the law and no pre nups.

For the Mrs argument, you can’t abrogate your responsibilities by saying its what you believe is right. That is nonsense. Its like me saying, its not child abuse as I dont believe its child abuse as its how I was brought up (Im not like that by the way, its an example). Law is about setting standards.

OBVIOUSLY IF THE POLITICIANS HAD MEANT IF ONE PARTY CALLS IT OVER ITS OVER, THEN THE LAW WOULD SAY THAT. IT DOESNT.

It says, behaviour is relevant, surprised so much going on lawyers fees on this. Seems to me an argument about who runs the country, like the elected politicians or the lawyers. And while Im on the subject – why do we still have freedom of movement for 4 years onwards from people voting against is?

Politicians write the laws, not the judges, if she wins this case it means politicians will need to rewrite the law as it is uncertain and makes no sense. Would that make my divorce and the other millions like mine based on divorce petitions unsafe? Probably. Then again, this is all rather missing the point, which is the financial unfairness of divorce and need for cheap enforceable prenups which is the real elephant in the room.

Lawyers arguing over the colour of mauve doesn’t really work, the real thing is the lack of working people marrying because they correctly see it (like the EU) as a liberal metropolitan elite agenda to stitch them up with.

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