Owens v Owens in the Supreme Court: eight reasons why it really matters

Posted: 17/05/2018

Simon Blain, a partner in the family team at Penningtons Manches and national committee member at Resolution, the leading membership organisation for family lawyers, has set out eight reasons why the Owens v Owens case being heard by the Supreme Court today is so significant:

• It’s about the role of the state in private matters. Should the courts to seek to apportion blame when a marriage breaks down, or should their role be confined to dissolving marriages that are no longer fit for purpose?
• It will affect thousands of people. In the year to January 2017, there were 113,996 petitions for divorce in England and Wales. The majority were based on so-called “unreasonable behaviour” and the overwhelming majority were unopposed. The court’s only role in such cases is a cursory glance at the petition, to make sure that all necessary sections have been completed. If Mr Owens is successful, petitions will be subject to much greater scrutiny, causing delay and additional cost for couples, even when they both agree the marriage has broken down.
• It’s about fairness. If Mrs Owens loses, she will in effect be trapped in a failed marriage until 2020, when she will be able to divorce, having been separated for five years. Until then, the family court will not be able to make financial orders for maintenance, or for a sale of the family home. Mrs Owens may have the resources to cope. Many in her position would not.
• It’s about clarity. “Unreasonable behaviour” has become a catchphrase, but it does not appear in the statute. The Supreme Court can bring some much needed clarity.
• It’s about bringing the law up to date. An important function of the Supreme Court is to ensure that our laws are interpreted in a way that fits with current social mores. The Matrimonial Causes Act was introduced in 1973, when the UK joined the EU, Princess Anne married Captain Mark Phillips and Prime Minister Edward Heath introduced the three day week. Perhaps it’s time for a fresh look at our divorce laws.
• The Supreme Court is unburdened by precedent. The “unreasonable behaviour” provisions in the Matrimonial Causes Act have been reviewed numerous times by judges in the High Court and the Court of Appeal, but never by the Supreme Court.
• The Supreme Court has unprecedented expertise in family law. For the first time in history, three Supreme Court judges are specialists in family law. All three (Lady Hale, Lord Wilson and Lady Black) will sit on the panel of five judges hearing the Owens appeal. There is no guarantee they will agree with one another, of course!
• It won’t bring about “no fault divorce”. Whatever the outcome of Owens, it still won’t be possible for a couple to divorce in England and Wales without alleging fault, unless they have first been separated for two years. A change to a true system of “no fault divorce” will still require Parliament to pass new legislation.

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