“The law which the family Judges have to apply and the procedures which they have to follow are based on hypocrisy and lack of intellectual honesty”.
You may be surprised to learn that this quote comes from Sir James Munby, one of Britain’s top family Judges, in his judgement in the Court of Appeal case of Owens –v- Owens Owens v Owens  EWCA Civ 182.rtf.
He was not alone- his fellow judge Lady Justice Hallett also remarked that:
“With no enthusiasm whatsoever, I have reached the same conclusion”.
But why were the judges so disappointed and frustrated?
What was the main issue in Owens – v – Owens?
There is only one ground for divorce in Northern Ireland – the irretrievable breakdown of the marriage. Any party wishing to petition for divorce must demonstrate the breakdown by proving one of five reasons:
- unreasonable behaviour
- continuous separation for period of 2 years (with the consent of the other party)
- continuous separation for a period of 5 years
The circumstances of the case were that Mrs Owens, a woman in the latter period of her life, took an application for divorce, as many do, on the grounds of her husband’s unreasonable behaviour. Mr Owens chose to defend the petition and argued that the grounds of unreasonable behaviour were “of a kind to be expected in a marriage”. On appeal, Mrs Owens argued that it was the ‘cumulative effect’ of her husband’s behaviour which lead to the breakdown between the parties.
The Appeal Court, in applying the law, found that she could not prove that her husband’s behaviour had not been sufficiently unreasonable to allow her a divorce.
If you read the judgement (Owens v Owens  EWCA Civ 182.rtf.), you’ll sense the Court of Appeal’s frustration as it recognised that Mrs Owens would remain:
“in a wretched predicament, feeling, as she put it in her witness statement, unloved, isolated and alone, and locked into a loveless and desperately unhappy marriage”
As Sir James stated:
“As I observed during the course of argument, Parliament has decreed that it is not a ground for divorce that you find yourself in a wretchedly unhappy marriage, though some people may say it should be.”
The case was appealed to the Supreme Court who delivered its decision on 17th May 2018 who upheld the Court of Appeal’s ruling and dismissed Mrs Owen’s appeal.
Is a change needed?
Sir James Munby has indicated that he feels the law is very badly in need of reform. He is the latest to back a change in the law of divorce which badly needs reformed. Baroness Hale of Richmond, the President of the Supreme Court, indicated last year that she also felt blame should be removed from the divorce process.
In the decision released today ( https://www.supremecourt.uk/cases/docs/uksc-2017-0077-judgment.pdf) the Supreme Court upheld the Appeal Court’s decision and ruled that Mrs Owens must remain married.
Lady Hale said
” I have found this a very troubling case. It is not for us to change the law laid
down by Parliament – our role is only to interpret and apply the law that Parliament
has given us. “
Lord Wilson said
“There is no denying that the appeal of Mrs Owens generates uneasy feelings,,,but uneasy feelings are of no consequence in this court, nor indeed in any
other appellate court. “
Divorce as a process surely must rank as one of the most difficult. You must issue a divorce application before you can, in many cases, explore the finances of the marriage. For many people it is impossible to reach the unreasonable behaviour test based on the relationship with their partner which has simply gone sour. For many they have to wait for a sufficient period of time to pass, for example two years, and they have to ask the consent of the other party to allow the divorce to proceed on that basis.
Put simply, the five ways to reach that irretrievable breakdown are very often difficult to prove and very often out of the reach of the average person who finds themselves in this difficult situation. If your partner did not commit adultery or behave badly enough towards you to be deemed unreasonable, then you could find yourself stuck – even more so should your spouse not provide their consent after two years separation.
How can DMC help?
Divorce causes sadness and hurt. No-one enters into the divorce process lightly. The law sets out to defend the sanctity of marriage by placing upon spouses the onerous task of proving that the marriage has broken down irretrievably but sadly in the world we live in today sometimes that task cannot be met because the reason for the end of the marriage is simply “just because”.
As Sir James noted the challenge for the divorce lawyer is therefore to draft a divorce petition that is robust enough to minimise the risk of the petition being rejected by the court without being so aggressive that the respondent may refuse to cooperate.
Divorce petitions must therefore be carefully drafted, by an experienced practitioner who understands the intricacies of the situation and can express the grounds of the irretrievable breakdown in a way which will be accepted by the court, and hopefully, the other party. If you feel that your relationship has broken down and would like to discuss your options, we’re here to help.