The Supreme Court has ruled against Mrs Owens in the case of Owens v Owens. The court upheld previous decisions by the original trial judge and the Court of Appeal that Mrs Owens must remain married to her husband until 2020.
The ruling clarifies that the phrase ‘unreasonable behaviour’ is a term that is frequently used incorrectly. The case clarifies that the behaviour itself does not have to be the reason the marriage has broken down. Rather, it has to be the reason why the petitioner can no longer reasonably be expected to live with the respondent.
Currently in England and Wales it is only possible for parties to obtain a divorce in the first two years after separation based either on adultery or behaviour.
After two years of separation, if both parties agree, a divorce can be obtained based on two years’ separation with consent. If one party does not agree, the couple must be separated for at least five years before a divorce can be obtained.
Unfortunately for Mrs Owens, the decision means she will continue to be locked in a marriage that is clearly over until 2020 when she can petition for divorce on the grounds of five years’ separation.
The Owens V Owens case highlights that the current law of fault-based divorce is inadequate. Hopefully the case will prove to be a catalyst for much needed change. On Friday 20 July, Baroness Butler-Sloss laid a Bill before the House of Lords which proposes a review of the law within six months. Her Bill suggests a structure whereby either or both parties could begin divorce proceedings and then confirm the divorce nine months later without alleging fault.