No-fault divorce campaigners await Owens v Owens decision

By Lenore Rice

The Supreme Court heard the case of Owens v Owens on 17th May, in what was the first time that the highest court considered the divorce provisions in the Matrimonial Causes Act 1973, and in particular, the need to establish fault.

Divorce solicitors and no-fault divorce campaigners in Northern Ireland and the rest of the UK eagerly await the result to see if the Supreme Court will use the opportunity to interpret the 1973 legislation in light of modern day society. The case revolves around the correct interpretation of section 1(2)(b) of the 1973 Act which sets out the grounds for divorce on the base of the 'unreasonable behaviour' of the non-petitioning spouse.

The 1973 Act provides that the only grounds for divorce is that the marriage has broken down irretrievably. Couples who have lived apart for a continuous period of 2 years before the presentation of the petition can apply for a decree if they are both in agreement about getting a divorce. In the Owens v Owens case the husband did not wish to be divorced and this options was not available. Consent by the respondent spouse is not required if the couple have lived apart for a continuous period of 5 years, though again, this was not an available route to Tini Owens.

Where parties are unable to use the 2 year or 5 year grounds for divorce, the petitioner is left with the option of asserting one or more of three possible  fault-based facts:

  1. That the respondent committed adultery and the petitioner can no longer tolerate to live with them.

  2. That the respondent behaved unreasonably and that petitioner cannot reasonably be expected to live with them any longer

  3. That the respondent has deserted the petitioner for a continuous period of at least 2 years

Mrs Owens submitted her petition citing the grounds of unreasonable behaviour. It is the only ground of the 3 options that requires the Court to consider whether the petitioner has actually given sufficient evidence of the unreasonable behaviour and the causal link to the break down of the marriage - adultery and desertion are essentially treated as automatic evidence of the break down in the marriage.

The lower courts have held that Mrs Owens did not sufficiently show unreasonable behaviour on the part of her husband and the petition was denied. In the Court of Appeal judgment the President said that the court had to consider what was proved to have happened in the context of the marriage, looking at the wife and husband, and decide whether in light of all the circumstances and with regard to the cumulative effect of all the respondent's conduct, whether "the respondent behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent?".

Mrs Owens appealed the decision to the Supreme Court and their decision is now awaited. While the court will be looking at the specific details of this divorce case, it is widely expected that they will comment on whether the current legislation, or the current interpretation of that legislation, is fit for purpose. The case reaches the Supreme Court at a time when prevailing attitudes towards divorce have changed significantly, and the calls for a no-fault based divorce system have gathered undeniable momentum.

If you require legal advice from a divorce solicitor in Northern Ireland contact Wilson Nesbitt in Belfast or Bangor by clicking here.