A woman has been granted permission to appeal the ruling of a case that the treasurer of Resolution has called “the most significant divorce case of the century so far”. Here we take a look at the development of Owens v Owens, before it reaches the Supreme Court.

What we know so far

Mrs Owens has been refused a divorce after failing to convince the court that the behaviour of her husband of 39 years sufficiently constitutes current definitions of “unreasonable behaviour”, with HHJ Tolson QC determining that the marriage was subject only to “minor altercations of a kind to be expected in a marriage”. Furthermore, he ruled, Mrs Owens had over-reacted to these apparently commonplace difficulties.

This ruling was upheld by the Court of Appeal (on Valentine’s Day no less), leaving Mrs Owens in legal and personal limbo. A fact which the president of the Family Division Sir James Munby characterised as a “wretchedly unhappy marriage” with no way out until she can establish that she has lived separately from her husband for at least five years.

However, this does not mean that the court was unsympathetic to Mrs Owens’ position. Indeed, it is clear that only inadequacies in the current law seem to have scuppered Mrs Owens’ hopes of a divorce. This is well-evidence by the court’s statement that it very much regretted leaving her in an “unhappy situation.”

Furthermore, one of the judges hearing the case said that he urged “the husband to reconsider his position” and called on him to “relent and consent to a divorce on the grounds the parties have lived apart for a continuous period of two years, rather than force his wife to wait until five years have elapsed”.

The key problem with the case is that, as the law currently stands, married couples cannot separate without providing one of five reasons: unreasonable behaviour; adultery; desertion; living separately for two years (but with mutual consent for the divorce); or five years (without the requirement for mutual consent). As Mrs Owens failed to prove unreasonable behaviour and Mr Owens says he has forgiven her adultery, unless there is a change in either his position or that of the law, she must now wait until 2020 to receive a divorce, pending, of course, on the outcome of her appeal at the Supreme Court.

The outlook

Mrs Owens enjoys considerable support, including from organisation Resolution, which instructed family law solicitors to draft submissions supporting Mrs Owens’ application to appeal. The organisation has also stated its intention to join the case as an intervener.

Mrs Owens’ legal team are likely to argue that the court made an error in focusing on the unreasonable behaviour aspect of the case. Instead, it is likely to focus on the fact that the appellant cannot reasonably be expected to live with her husband, and that to expect her to do so is itself an expectation that constitutes unreasonable behaviour.

Whatever the outcome and the legal specifics of the case, it has, according to Nigel Shepherd, National Chair of Resolution, highlighted “why divorce law in the UK needs to change. We need to reduce conflict and support separating couples to resolve matters amicably, rather than forcing them to play a blame game where one or both of them thinks the marriage is over.”

It can only be hoped that the law will find a way to ensure that the 66-year-old Mrs Owens does not remain “locked in” to her marriage to the 78-year-old millionaire mushroom farmer. The absurdity of the Mrs Owens’ position is underlined by the comments of Sir James Munby who commented that “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.”

However, as it stands, Mrs Owens is left to feel “unloved, isolated and alone”, and entirely at the disposal of adversarial divorce laws that have quite clearly failed to catch up with contemporary reality.

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