Gavin Blackman, a partner at Edwards Duthie Shamash on why these are exciting times for family lawyers

gavin blackman

If you watched the news or picked up a paper recently, you’ll probably be aware of the case of Owens v Owens – a defended divorce case that’s gone all the way to trial and is so incredibly rare it has made headlines. Five justices of the Supreme Court heard legal argument and submissions in the case but we do not expect to receive the judgment for a number of weeks.

The central focus of the case is the operation of the Matrimonial Causes Act 1973 and, in particular, the mechanics by which a person who petitions for divorce must satisfy the court that the marriage has broken down irretrievably. The petitioner must show to the court that the marriage has broken down irretrievably as a result of one of the following five facts: adultery; unreasonable behaviour; desertion for a period of at least two years; the parties have lived apart for two years and each party consents to the divorce or the parties have lived apart for five years. Unless the parties have lived apart for continuous period of at least two years, most parties will be forced to rely on either number one or two above.

In this case the designated family judge at the Central Family Court in the first instance, and then the President of the Family Division – sitting with two other lord justices of appeal – did not consider, on the balance of probabilities, that the husband had behaved in a way in which the wife could not reasonably be expected to live with him. A decree of divorce was not granted. The wife in this case has, therefore, been left locked into her marriage at the present time!

Where does this then leave the wife in this case? Well, she will have another attempt to obtain a divorce by presenting her case to the Supreme Court in the latest appeal. Unless the Supreme Court comes to her rescue she will be left to wait another couple of years and rely on the fact that the parties have lived apart for a continuous period of five years (if indeed she can show a court that is the case).

Whilst there have been arguments over the years of a need to change the law as it relates to divorce to offer a, possible, sixth route to divorce – a “no fault” divorce, we do not expect the current case to change much. After all, it is not judges – but parliament – that makes laws. The Supreme Court may express a view that the current position is unsatisfactory then it is for parliamentarians at Westminster and not for judges to make the law. Such is the law, and it is the duty of the court to apply it.

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