Owens v Owens – Still a Victory for ‘No Fault Divorce’?
Never in my 15 years career as a family lawyer, have I seen a ruling by the Supreme Court received with such reservation, misgiving and disappointment by the legal profession.
When the high profile appeal made by Tini Owens to be granted divorce from her husband of 40 years was rejected at the end of last month, we understood that it was in accordance with a strict interpretation of the law, but cited the decision as evidence of the urgent need for its reform.
Mrs Owens, 68 from Worcestershire, wanted the court to grant her a divorce from her husband, Mr Hugh Owens, 80. As she had no grounds based on adultery, two year separation with consent or desertion, the ruling of the Supreme Court that her husband’s behaviour was not unreasonable enough to support divorce, means she will have to now wait until 2020 to begin divorce proceedings after five years of separation.
The justices who made the ruling were quick to voice their concerns at having to adhere to laws that have not been changed since their introduction in 1973. One, Lord Wilson, said they had ruled against Mrs Owens ‘with reluctance’ and highlighted the need for a Parliamentary review of the law.
Another, Lord Mance, joined his colleague in sharing ‘uneasy feelings’, one judge said she reached her conclusion with ‘no enthusiasm whatsoever’, and Parliament was cited as having ‘decreed’ that being in a ‘wretchedly unhappy marriage’ was not grounds for divorce.
Even the Supreme Court President, Lady Hale, said, while it was not for judges to change the law, she found the case ‘very troubling’.
Whilst Mrs Owens is reported to have been devastated by the ruling, her situation does provide fuel for the growing campaign being led by the association for family law professionals, Resolution, to introduce a ‘no-fault’ divorce process which already exists in the US, Australia and Scotland.
I and my colleagues at Eric Robinson Solicitors are stanch advocates for the opportunity and framework for couples who have grown apart, are willing to amicably separate and wish to avoid accusations and blame for the sake of their family, to quietly and discreetly divorce. A private members' bill has been introduced into Parliament by former family judge Baroness Butler-Sloss, seeking a review of the current law, but it won’t be a quick route to reform.
The Supreme Court ruling will also delay Mr and Mrs Owens from being able to address financial claims arising between them as a result of their separation. Whilst it is possible that they will be able to reach some level of agreement regarding financial provision, this can only be done at this stage by consent, and cannot prevent additional claims being pursued in the future.
The inability to reach the necessary Decree Nisi stage of divorce for at least another two years, means that they are now prevented from achieving financial security by means of either a Consent Order, which will confirm an agreed financial agreement on a final and clean break basis, or a Financial Remedy Order, determined by the court in the absence of any negotiated agreement. Financially therefore the ruling leaves Mr and Mrs Owens’ in limbo.
It could well be the case that none of the legal wranglings and public spectacle that have taken place (and could well have added to both Mr and Mrs Owens’ frustration and resentment) would have been needed if Mrs Owens could have tried to end the relationship on a ‘no fault’ basis, and surely that would have been a blessing for them, their adult children and whole family?
I can only hope that, though Mrs Owens’ perseverance and conviction may not have given her the personal outcome she desired, it has strengthened resolve to help those who find themselves in a similar position in the future.
We at Eric Robinson Solicitors certainly support ‘No Fault Divorce’.