In this blog on the eagerly awaited Supreme Court judgment in the case of Owens v Owens, Family Law in Partnership director James Pirrie examines the case itself and the wider implications of the judgment.

When marriages end spouses focus on their family and, more often than not, their finances. Along the way they will also need a divorce or a dissolution. Without that, the Court cannot (currently) make an order to formalise the finances and pensions cannot be shared.

Divorces are granted only when a marriage has “irretrievably broken down”. This is established by showing one of five facts:

• the spouses have lived apart for five years
• they have lived apart for two years and both agree to end the marriage
• there has been adultery and the one asking for a divorce (“the petitioner”) finds it intolerable to live with the other (“the respondent”)
• the petitioner cannot reasonably be expected to live with the respondent because of their behaviour (“the behaviour petition”); or
• desertion

All of which brings us to Mr and Mrs Owens who married in 1978 (when Anna Ford had just become the first female newsreader and James Callaghan was PM (with Margaret Thatcher leading the Opposition)). The Owens were aged 28 and 40 respectively and were, according to Mr Owens, never emotionally intensely connected but had learned how to rub along. Thirty four years later Mrs Owens wanted a divorce. Six years of litigation later she still wants a divorce but can’t have one on the basis of Mr Owens’s behaviour.

For many years family lawyers have sought to ameliorate the out-dated law with which this jurisdiction is encumbered. We prepare simple petitions which seek to avoid hurt and upset so that the parties can focus on the transition that they face from married to separated and can engage their best selves as regards perfecting post separation parenting and financial arrangements.

In line with that culture, Mrs Owens prepared a simple divorce petition. Her lawyers no doubt advised her that the Court would back her and, if push came to shove, would apply pressure to Mr Owens and ultimately make findings that would permit the divorce to advance (without which financial orders dividing up the resources could never be made).

But that is not the law and, however reluctantly, the Supreme Court has today in their judgment in the Owens case first applied the law and secondly reminded Parliament that it – and it alone – has the power to amend the law in a way to better meet the needs of families in the 21^st century. One of the real difficulties is that findings of fact usually stand so when the first judge to consider the case appeared to have applied the correct tests and concluded that the expectation that the parties continue to live together was reasonable (or to apply the law’s instinctively convoluted thinking “not unreasonable”), Mrs Owens would be stuck.  The Supreme Court was uneasy about whether everything had been managed correctly but there was not enough to permit interference. So Mrs Owens might be stuck only because of the way she presented her evidence or was advised to run her case. No doubt the profession will benefit from this lesson expensively learned by Mrs Owens and, with the threshold thus clarified, family lawyers are reminded how to present cases which clear it safely.

So what is the impact of the Owens judgment?

Firstly, most divorces will proceed as they always have, with one spouse presenting a pretty simple divorce petition and the other spouse letting it through on the nod.

Secondly, the way is open for an ambush on tactical grounds, perhaps, defending a petition and knowing that the Court will have to apply the law meticulously. Where this is done and there are no clear events that tick the boxes of the law and the case is about the cumulative effect of behaviour, then there will be long-listings in open court when witnesses will be called and detailed analysis will be undertaken as regards:

• what specifically has been alleged
• whether it actually happened
• what were the susceptibilities of the petitioner to the behaviour; and thus:
• what were the effects of the respondent’s behaviour on the petitioner; and then, standing back
• whether it is unreasonable to expect the petitioner to continue to live with the respondent. Only if the answer is that it would be unreasonable, can the divorce be granted and any financial settlement structured.

Thirdly, Mrs Owens will in 2020 (after 5 years separation) presumably issue a petition on the basis of having lived apart for five years and at last bring this sad chapter to a close.

Fourthly, we may start to call our “unreasonable behaviour” petitions “unreasonable expectation” petitions – all of which leaves one wondering about storms in teacups. As Lady Hale puts it “it is not for us to change the law laid down by Parliament – our role is only to interpret and apply it”. We have all hoped for many years that Parliament would squeeze something into its busy timetabling to change the law. When this was done in 1996 eventually Parliament cried off because of a backlash headed by the Daily Mail. Hopefully seeing the pointless process through which the Owens have advanced, those reactions will be more muted on this occasion.

We are left wondering whether, if Mrs Owens had managed the process differently, she might have avoided this whole sorry tale. Her first solicitor’s letter was the service of the divorce petition. Perhaps more time was needed to listen to Mr Owens and understand his perspective. Apart from a dogged resistance to a divorce, we still do not understand his motivations. Change is more likely to be achieved when someone first feels heard – but it is easy to be wise after the event. There are over one hundred thousand divorces a year; most do not come off the rails quite as tragically as this one.

For further information on the Owens case and divorce and separation more generally, contact Family Law in Partnership director James Pirrie at E: jp@flip.co.uk or T: 020 7420 5000.

If you have enjoyed reading this blog and would like to learn more about this case, please take a look at these related blogs:

The Riddle of Owens v Owens

No Fault Divorce – End of the blame game?

I just no longer want to be with them: the call for no fault divorce

One step back for no fault divorce