Supreme Court Owens decision keeps no-fault divorce in spotlight

By Lenore Rice

While the decision of the Supreme Court in the Owens v Owens case was to dismiss the appeal of the wife wanting to divorce her husband, the reluctance with which it was given has seemingly strengthened the campaign for a move to no-fault divorce in Northern Ireland and the rest of the UK.

The details of the Owens v Owens case can be read in our follow previous articles:

Woman denied divorce to challenge fault based system at Supreme Court

No-fault divorce campaigners await Owens v Owens decision

Mr Owens had contested his wife's application for divorce on the grounds that the marriage had irretrievably broken down. She had resorted to citing one of the three possible fault-based facts as she did not have the consent of her husband to an application based on living apart for 2 years. When it first came before the Court the judge held that Mrs Owens' allegations of unreasonable behaviour were 'at best flimsy' and her application was refused. The Court of Appeal also dismissed her case though acknowledged that there was a strong argument for no fault divorce to bring divorce law up to pace with modern day realities.

The Supreme Court went a step further, with Lady Hale saying she had "uneasy feelings" and that it was "a very troubling case". Mrs Owens application was reluctantly dismissed, with Lady Hale saying that it was not for the court to "change the law laid down by Parliament". They could only "interpret and apply the law that Parliament has given."

Campaigners for no-fault divorce were encouraged by the comments of the Supreme Court, saying that it was obvious to all throughout the process that the marriage had clearly come to an end, but yet the courts were powerless to help Mrs Owens leave a marriage she was trapped in. Nigel Shepherd, a campaigner for no-fault divorce and previous Chair of Resolution, said the "judgment underlines just how vital it is that Government now urgently reforms the divorce law."

There are also concerns that the fault based approach divorce will require couples to inflate the allegations of behaviour in order to pass the test of unreasonable behaviour, which goes against the premise of amicable separation that is being championed by family law solicitors in Northern Ireland and the rest of the UK.

The Divorce (etc.) Law Review Bill is awaiting a second reading at the House of Lords, and includes a proposal for a new divorce process which would allow either party to commence divorce proceedings and then confirm the divorce 9 months later without any requirement to allege fault.

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