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Divorce in light of the Owens v Owens case

There is only one ground for a divorce which is the irretrievable breakdown of a marriage.

To prove the irretrievable breakdown your divorce must be based on one of the following five facts:

  • Adultery
  • Unreasonable behaviour
  • Separation of 2 years, which both parties consent to
  • Separation of 5 years
  • Desertion

You cannot simply say that you have grown apart, or no longer love each other. 

In Owens v Owens, heard by the Supreme Court, Mrs Owens started divorce proceedings on the basis of her husband’s unreasonable behaviour.  Mr Owens did not accept the marriage had broken down and defended the divorce.

In Owens the court considered the ground of unreasonable behaviour and the correct test that needs to be applied.  The test is:

“the correct inquiry is: (i) by reference to the allegations of behaviour in the petition, to determine what the respondent did or did not do; (ii) to assess the effect which the behaviour had upon this particular petitioner in light of all the circumstances in which it occurred; and (iii) to make an evaluation as to whether, as a result of the respondent’s behaviour and in the light of its effect on the petitioner, an expectation that the petitioner should continue to live with the respondent would be unreasonable”

Unfortunately for Mrs Owens, when the current law was applied to her case, the court concluded that she should not be granted a divorce, although it was accepted that the marriage had broken down, Mrs Owens had not proved unreasonable behaviour.  This was despite the court stating that the appeal generated uneasy feelings but that the duty of court was to apply the current law as set out by Parliament.  In this case the Matrimonial Causes Act 1973.

This case will lead to renewed calls for Parliament to reconsider the current divorce law and to introduce a no fault divorce.

For more information please contact Emma Benyon-Tinker, Solicitor in our Family Team, on 01392 848947 or email emma.benyon-tinker@everys.co.uk

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