Divorce The Blame Game Continues Owens v Owens

Date Added 31.07.18

This article was published in 2018 and described the supreme court case of Owens v Ownes [2018], before the introduction of ‘no-fault’ divorce in 2022. It offers valuable insight into the reasoning behind why the legislation came into place.

Please see our latest family law articles for more updated information.


In the long-anticipated judgement of Owens v Owens [2018], the Supreme Court dismissed Mrs Owens’ petition to divorce her husband Mr Owens. Although with reluctance, the majority ruled that Mrs Owens had failed to prove the marriage had irretrievably broken down.

Mrs Owens married her husband in 1978. The decision now means (despite confirming that the marriage had become loveless and desperately unhappy), she will have to wait until 2020 in order to divorce him without consent. Although on the face of it this seems unfair, with Mr Owens contesting the divorce both he and Mrs Owens by law must live apart for five years in order for the divorce to be accepted. Therefore, having filed the initial divorce in 2015 without consent from Mr Owens the divorce won’t be accepted until 2020.

Mrs Owens argued that the courts interpretation of section 1(2)(b) of the Matrimonial Causes Act 1973 was incorrect. This section provides that a spouse can obtain a divorce upon irretrievable breakdown of the marriage if the other party has behaved in such a way that the petitioner cannot reasonably be expected to live with them.

Much of Mrs Owens petition regarded appropriate anodyne terms not uncommon in modern divorce proceedings. These included claims that ‘Mr Owens had prioritised his work over their life at home; that his treatment of her had lacked love or affection’ or that he had at times been disparaging to her in public. In total there were 27 allegations provided all of which were defended by Mr Owens, who explained that he felt they still had a “few years” to enjoy together.

What happened in court?

First Instance

The court in the first instance refused the petition. Judge Robin Toulson QC explaining that Mrs Owens’ allegations were “minor” and “to be expected in Marriage.”

Court of Appeal

Not at all happy with the decision, Mrs Owens took the case to the Court of Appeal. Giving the leading judgement, Sir James Munby upheld Judge Toulson’s decision and dismissed the appeal. He explained that Judge Toulson was correct in his ruling that the marriage had not in law irretrievably broken down. He did however pass comment on the state of the current law explaining that unhappiness should in future be grounds for divorce.

Supreme Court

Following on from Judge Toulson’s concerns in the Court of Appeal, the decision to dismiss the appeal although unanimous generated “uneasy feelings” amongst the Supreme Court panel. Lord Wilson said, he was “reluctantly persuaded” to dismiss the appeal on the basis that he had to follow law enacted by parliament.

What does this mean?

The current law in England and Wales states that in order to divorce within the first two years after separation grounds of adultery or unreasonable behaviour must be proven.

After two years of separation and if both parties are in agreement a divorce will be allowed. However, this is not the case if one party disagrees with the divorce. In this circumstance the petitioner must wait five years until they can divorce without the other party’s consent.

Arguably, the decision in Owens v Owens [2018] is not a reflection of most divorce proceedings. Lord Wilson explains that of the 114,000 petitions for divorce filed in England and Wales in 2016 only 17 amounted to a contested hearing in court.

However, the backlash from Owens v Owens [2018] will be felt across the family law community. The concern is that the decision puts pressure on couples to intensify allegations of unreasonable behaviour to ensure the divorce is accepted by the courts. This in turn increases animosity among couples further establishing a divorce system based on fault and blame.

With cases such as Owens v Owens [2018], the level of animosity created during a fully defended divorce would strongly suggest that the marriage has well and truly broken down. However, as Lady Hale explains it is not for the courts “to change the law laid down by Parliament” and although the decision can be criticised it is the courts role to implement the law not change it.

The future of this area of law therefore falls to parliament, though in light of Brexit it is hard to say how much of a priority this will be.

If you are considering a divorce and would like to discuss your specific circumstances, Talk to Tollers. Our team of Family Solicitors are friendly and empathetic and will help you through this difficult time. Our team can be contacted on 01604 258558 or email talk@tollers.co.uk

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