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Resolution stresses urgent need for no-fault divorce in wake of Owens judgment

Mrs Owens intends to seek permission to appeal to the Supreme Court

Resolution has responded to the Court of Appeal's dismissal of Mrs Owens' appeal in her defended divorce case, which effectively means that she must remain married to her husband.

Speaking immediately following judgment in Owens v Owens [2017] EWCA Civ 182, Resolution's Chair, Nigel Shepherd, said:

"This judgment will obviously come as a disappointment to Mrs Owens, and absolutely underlines the urgent need for no-fault divorce. Nobody should be compelled to remain in a marriage against their will, yet judges' hands are tied by the current divorce law. Sadly, all too often, couples are forced to play the blame game, and today's decision demonstrates why this needs to change.

"As the President of the Family Division rightly asks in the judgment, 'ought the decision whether or not a marriage should be dissolved to be one for the parties which the State is not in a position to question?'

"At Resolution we have long campaigned for reform in order to reduce conflict and support separating couples to resolve matters amicably, notably at our very successful lobby of Parliament last November, which was received positively by MPs from all parties.

"The simple fact is, this case should not have been necessary. Only by implementing a no-fault divorce system can we ensure such a situation doesn't happen again.

"This is why we are today repeating our call on the Government to change the law and introduce no-fault divorce. The reasons for marriages breaking down are often complex and rarely will both spouses agree on them.

"No-fault divorce is widely supported. 69% of the public want to remove blame, as do – among others - Sir James Munby, President of the Family Division; Sir Paul Coleridge, chairman of the Marriage Foundation; and Lord Wilson of Culworth, a Supreme Court judge.

"Successive governments have dragged their heels on this issue for too long. Owens v Owens must be the spark that ignites a fundamental change in our divorce law."

The Court of Appeal dismissed the wife's appeal against the dismissal of her petition for divorce based on her husband's unreasonable behaviour, leaving her (as the Court of Appeal acknowledged) 'trapped in [a] loveless marriage'. Mrs Owens intends to seek permission to appeal to the Supreme Court.

The Court of Appeal adopted a strict approach to its limited powers to interfere and review the trial judge's findings of fact and conclusions, on the basis that he correctly applied the current law as laid down by Parliament and was entitled to reach the conclusions he did.

Philip Marshall QC of 1 King's Bench Walk, who acted for Mrs Owens, commenting on the judgment, said:

"In a case such as this, the court has to evaluate what is proved to have happened (i) in the context of this marriage, (ii) looking at this wife and this husband, (iii) in the light of all the circumstances and (iv) having regard to the cumulative effect of all the respondent's conduct. The court then has to ask itself the statutory question: given all this, has the respondent behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent?"

Sir James Munby, the President of the Family Division, dismissing the appeal, and with whom Lady Justice Hallett agreed 'with no enthusiasm whatsoever, said:

"[T]he law which the judges have to apply and the procedures which they have to follow are based on hypocrisy and lack of intellectual honesty. The simple fact is that we have, and have for many years had, divorce by consent, not merely in accordance with section 1(2)(d) of the 1969 Act but, for those unwilling or unable to wait for two years, by means of a consensual, collusive, manipulation of section 1(2)(b). It is ironic that collusion, which until the doctrine was abolished by section 9 of the 1969 Act was a bar to a decree, is now the very foundation of countless petitions and decrees."

He had earlier said:

"In the vast majority of such cases the petition proceeds without interrogation. The respondent is not even put to the trouble, nor his conscience stretched, by having to engage either with the facts alleged by the petitioner or even with the allegation that the marriage has irretrievably broken down, let alone with the contention that his behaviour has been unreasonable. All he has to do is put the word "No" in the relevant box in answer to the question in paragraph 4 of the acknowledgment of service: "Do you intend to defend the case?" Consistently with the form of the acknowledgment of service, the respondent does not even have to verify it by a statement of truth.

"The obligation imposed on the court by section 1(3) of the 1973 Act to "inquire … into the facts" is qualified by the crucial words "so far as it reasonably can", so, unless there is something to alert the judge to the fact that 'something is going on', the task for the District Judge or Legal Adviser considering an undefended case in accordance with FPR 7.20 comes down to this question: assuming the facts alleged are true, does what is pleaded amount to unreasonable behaviour within the meaning of section 1(2)(b)? The challenge for the divorce lawyer is therefore to draft an anodyne petition, carefully navigating the narrow waters between Scylla and Charybdis to minimise the risks that if the petition is too anodyne it may be rejected by the court whereas if it is not anodyne enough the respondent may refuse to cooperate."

Reviewing the number of defended divorce petitions, the President said:

"In the year to January 2017, there were 113,996 petitions for divorce. . . . I understand that, over the same period, notice of intention to defend was given in some 2,600 acknowledgements of service (some 2.28% of all petitions) while actual answers filed were about 760 (some 0.67% of all petitions). There are no available statistics, but one can safely assume that the number of petitions which proceed to a final contested hearing is minute, probably little more than a handful. So, the attritional effect of the process itself reduces from an initial 2.28% of respondents who are minded to oppose the petition to an utterly trivial, let us say something of the order of magnitude of 0.015%, of respondents who actually carry their opposition through to a contested hearing. Is . . .  the public policy which underlies our current divorce law, still needed? Can it really be justified, where its application is confined to such a minutely small number of cases?"

In the wake of the judgment, Professor Liz Trinder of Exeter University published interim findings of research into the operation of the current law on the ground for divorce and civil partnership dissolution in practice and whether and how the law might be reformed. For the research findings, click here.

For the judgment in Owens v Owens, click here.