The blame game continues for now

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On Wednesday (25 July 2018), the Supreme Court unanimously dismissed Tini Owens’ challenge to earlier rulings that she had not sufficiently “made out” grounds for divorcing her former husband on the basis of his so-called “unreasonable behaviour”. The result is that Mr and Mrs Owens remain married (despite the fact that the courts have concluded that the marriage is over) and the likelihood is that she will need to wait until February 2020 when she will be able to divorce her former husband on the basis of five years’ separation.

Nigel Shepherd and Nicola Rowlings from Mills & Reeve acted on a pro bono basis for Resolution, the largest family justice organisation, who intervened in the case in support of Mrs Owens. Resolution, which has a membership of approximately 6,500 family lawyers, mediators and other family justice professionals, works tirelessly to promote a non-confrontational approach to resolving family disputes. They had a clear interest in the issues raised by the Owens case and were able to provide the Supreme Court with information as to the practical problems the current interpretation of the law causes. By giving our client permission to intervene, the Supreme Court itself recognised the wide public importance that this crucial decision was going to have, whatever the outcome. 

In the proceedings, Resolution had highlighted how the phrase “unreasonable behaviour” risked judges wrongly feeling that they needed to find “bad behaviour” before being satisfied that a divorce based on behaviour could be granted. The Supreme Court agreed with Resolution and criticised use of the phrase. At the very least, this will lead to a different emphasis in the way family lawyers explain to clients what "behaviour" means in the context of the divorce process and to the approach the courts take to the required evidence. 

Although the Supreme Court justices highlighted how troubling the appeal was, generating “uneasy feelings”, they made clear that their judgment was bound by the current legal framework. They also urged Parliament to consider changing the law. The ruling, while a real disappointment for Mrs Owens, will hopefully result in increased support for reform of the law. Speaking after the judgment was given, Nigel a long-time campaigner for the introduction of no fault divorce, said: 

“While the Supreme Court has, reluctantly, applied the law correctly, the fact that they have done so confirms there is now a divorce crisis in England and Wales, and the government needs to take urgent action to address it. In this day and age, it is outrageous that Mrs Owens – or anybody – is forced to remain trapped in a marriage, despite every judge involved in the case acknowledging it has come to an end in all but name. Today’s judgment underlines just how vital it is that government now urgently reforms the divorce law.” 

Attention has now turned to the progress of a Private Members’ Bill introduced by Baroness Butler-Sloss which seeks to make the first major changes to divorce laws in nearly 50 years. The proposed legislation would commit the Lord Chancellor to review the current law, and report back to Parliament. It also suggests a new divorce process where either or both spouses could begin divorce proceedings and then confirm the divorce nine months later without alleging fault.

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