The marriage that can’t be broken

Mr and Mrs Owen married in 1978 and had two children. They separated in February 2015 and Mrs Owen petitioned for divorce three months later. They are still married!

To prove the breakdown of a marriage, divorce petitions can refer to adultery, desertion, 2 years separation with consent, 5 years separation (when consent is withheld) and behaviour.

When a divorce is based on the respondent’s unreasonable behaviour the court hearing the petition for divorce should not hold the marriage to be 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.

The original trial judge (Judge Tolson QC) was not satisfied that Mr Owens had behaved in such a way that Mrs Owens could not reasonably be expected to live with him. Mrs Owens’ divorce was refused despite the judge finding that the marriage was over.

Mrs Owen appealed and the matter came before the President of the Family Division, Sir James Munby, who said “It is not a ground for divorce that you find yourself in a wretchedly unhappy marriage though some people say that it should be”. He found that Judge Tolson QC, had correctly applied the law even if the result was desperately unfair to Mrs Owen.

The Supreme Court judgment was issued on 25 July and Mrs Owen’s appeal was refused.

The decision reaffirmed that it was for the court (and not Mrs Owens) to assess if it was reasonable for her to continue living with Mr Owens.

The Owens case is one of only a tiny proportion of divorces which are defended. However, everyone recognised that a reform of the divorce system is long overdue and that exaggerating a respondent’s behaviour or choosing particularly offensive examples of behaviour, is undignified and bad for children. Like the Court of Appeal below, the Supreme Court made it clear that law reform is not their remit and Parliament is responsible for change.