Following over three years of legal procedure, the Supreme Court has this morning had the final say in the divorce case of Mr and Mrs Owens.

This case has attracted substantial media attention, after the court at first instance refused to grant Mrs Owens a divorce. Mrs Owens claimed that her husband’s behaviour made it unreasonable for her to be asked to continue to live with him. Mr Owens denied this, and the judge agreed, finding that the behaviour Mrs Owens relied on was too mild to show that she could not be expected to live with Mr Owens. That is the standard which has to be met in order for a divorce to be granted if parties have not been separated for sufficiently long. The Court of Appeal agreed, though both they and the judge in the first instance also agreed that, as a matter of fact, there was no prospect that Mrs Owens would actually come back to live with Mr Owens.

The Supreme Court has agreed with the Court of Appeal, and Mrs Owens will now have to wait until she and her husband have been apart for five years to get a divorce without his consent. The Supreme Court, the Court of Appeal and the judge have all expressed the same view – that they have to apply an out of date law which does not reflect the reality of divorce today.  

The reality is that, at the point where one person has filed for divorce, they are indicating that they do not want to try to keep the marriage going any longer. Where one half of a partnership has made that decision, it is suggested that keeping a marriage going in name will not change their mind or save that marriage. In the case of Mr and Mrs Owens, the courts acknowledge that their decision will not lead to a happy reunion between the parties. However, as things stand under the law, a person seeking divorce still has to convince a court that they were right to want to end the marriage and that they cannot be reasonably expected to continue. 

In most cases, the person whose behaviour is complained about does not object, and the courts do not consider what an individual should reasonably have to accept in a marriage – something which is surely entirely up to the individual asked to accept it. Family law solicitors will know that in the majority of cases, while there may be extensive arguments about the finances, the divorce itself proceeds with very few hurdles. It is only in the very rarest cases that one party chooses to insist that a marriage where one party is filing for divorce has not in fact broken down.  It is, however, quite common for parties to disagree who caused the marriage to break down. 

As matters stand, the person whose behaviour is complained about cannot defend themselves against allegations that they brought the marriage to an end without either filing their own petition or insisting that a marriage which has clearly come to an end in every meaningful way should continue in name only. It is suggested that the law should not support such a position.  To keep one party tied into a marriage which they no longer want, with a person they are no longer living with, does not seem reasonable or something the law should uphold. The Supreme Court did not feel able to rewrite the law on this, but has highlighted the need for reform, and it is hoped that the government will reform the law on divorce to ensure that people are able to end a marriage if that is what they want to do.

Residents of Scotland will be relieved to know that they are unlikely to find themselves in Mrs Owens' unhappy position.  In Scotland, divorce is granted where the party seeking the divorce can prove that the marriage has broken down irretrievably. While a similar test exists for irretrievable breakdown caused by the other person’s behaviour, a much shorter period of separation is required before one person can obtain a divorce without the other’s consent. In Scotland, parties need only be apart for two years before such a divorce can be obtained, or one year if both parties agree.

As the parties have to resolve all financial matters between them before a divorce can be granted, the majority of divorces in Scotland therefore proceed on the basis of the time the parties have been apart, not on the behaviour of either party. A separate question might be raised as to whether, having resolved the financial matters between them, parties who agree that they would like to divorce should not be able to do so without having to wait a year or referring to someone’s behaviour.