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Family Solicitors

Owens v Owens: five year separation upheld in no-fault divorce (26 July 2018)

Date: 26/07/2018
Duncan Lewis, Family Solicitors, Owens v Owens: five year separation upheld in no-fault divorce

Tini Owens and Hugh Owens, 68 and 86 respectively, have been married for 50 years and have two adult children. When Mrs Owens petitioned for a divorce claiming she endured a “loveless marriage”, her husband refused, leaving her no choice but to seek help from the courts. Their verdict: ‘Mrs Owens must remain married to Mr Owens for the time being’ until they have been separated for 5 years.

Here we have an unusual case, as defended suits for divorce are rare. The Appellant, in her petition for a divorce, can provide no legal evidence of wrongdoing by the Respondent, Mr Owens, resulting in a no-fault divorce.

Divorce Petition

Though Mrs Owens was contemplating a divorce since 2012, she did not leave the matrimonial home until February 2015, which means they have only lived separately for 3 years. Mrs Owens began divorce proceedings in May of that year, claiming the marriage had broken down irretrievably and that Mr Owens had behaved unacceptably. Conversely, Mr Owens argued that the marriage was successful.

Due to Mr Owens’ defence, Mrs Owens was given a chance to submit further evidence in favour of her case in a full day substantive hearing with none but the two parties present. In a bid to strengthen her case, Mrs Owens put forward 27 allegations against Mr Owens, though her counsel chose only to concentrate on a fraction of these examples. His Honour Judge Tolson QC felt them flimsy and rejected Mrs Owen’s petition.

The Appeal

She was granted permission to appeal this judgment to the Court of Appeal. Sir James Munby dismissed Mrs Owens’ appeal, accepting that HHJ Tolson QC was not expected to make findings in relation to each of the 27 allegations.

Mrs Owens went on to be granted permission to appeal to the Supreme Court, which released its decision on 25 July 2018.

In devising their judgment, Justices Lady Hale (President), Lord Mance, Lord Wilson, Lord Hodge, and Lady Black referred to s.1 of the Matrimonial Causes Act 1973 which states that the court ‘shall not hold the marriage to have broken down irretrievably unless the petitioner satisfies the court’ that either:

  1. the respondent has committed adultery;

  2. the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent;

  3. the respondent has deserted the petitioner for a continuous period of at least two years;

  4. the parties have lived apart for a continuous period of at least two and the respondent consents to a decree being granted;

  5. the parties have lived apart for a continuous period of at least five years.

When assessing whether (b) was valid in Owens v Owens, the court considered the test which takes into account what the respondent did/ did not do, what effect the behaviour has had on the petitioner (Mrs Owens) and whether continued habitation would be unreasonable to expect as a result of the behaviour. They found it inappropriate to intervene in the Court of Appeal’s decision to dismiss Mrs Owens’ complaints concerning HHJ Tolson’s application of this test and decision to find (b) invalid.

Supreme Court Judgment

Since Mrs Owens was not able to convince the first-instance court of (b) and without Mr Owens’ consent to the divorce, the Supreme Court submitted that they could only allow the divorce once (e) has been met, thus dismissing her appeal.

It should be noted that Lady Justice Hale was reluctant to dismiss Mrs Owens’ appeal on the basis that HHJ Tolson QC made his decision in regards to a limited number of Mrs Owens’ allegations against her husband. She felt that by doing so HHJ Tolson QC could not depend upon the cumulative effect of the 27 instances of the behaviour, which would demonstrate that it had been demeaning because it had taken place over a long period of time. Since it was not what Mrs Owen was seeking, Lady Justice Hale was unable to put forward that the case should be sent back to the first-instance court to be tried again, considering all examples originally submitted by Mrs Owens.

Whilst the Supreme Court did unanimously dismiss the appeal, they went on to invite Parliament to review the law that presently denies Mrs Owens a divorce. No-fault divorce is one which many are seeking reform. Until that point, the courts have no option but to continue interpreting the law as it is.

Duncan Lewis Family Solicitors

Adeeba Naseem, Director of Family and Childcare at Duncan Lewis, regularly deals with separation, divorce and financial proceedings (domestic and international), including pre-nuptial and post nuptial agreements, and rare cases involving the Queens Proctor. She also specialises in handling international and domestic family law proceedings at the High Court.

Contact Adeeba on 020 3119 0220, or via email on adeeban@duncanlewis.com.

Our Family & Childcare teams are specialists in all aspects of family and private/public children law matters from offices across London and throughout the UK. Recognised by Legal 500 2017, the team is significantly experienced in complex financial matrimonial matters (ancillary relief) relating to the breakdown of a marriage/relationship, with a broad practice representing parents, family members and children through their Guardian in all children public law proceedings.

Since 2013, Duncan Lewis has an established Islamic & Sharia Law team which specialises in Islamic Divorce, Islamic Financial Settlement & Mahr Claims under English Law.

For expert advice, contact one of our team of specialist solicitors on 033 3772 0409.

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