Owens fallout: a damp squib or turning point?

The Supreme Court handed down their judgment in the matter of Owens v Owens [2018] UKSC 41 on 25 July. Before the judgment there had been speculation and discussion in the press as to the issues ancillary to this case, particularly no-fault divorces and the long-standing practice in the family courts to draft petitions that, as HHJ Tolson at first instance put it, ‘lacked beef’. Is this judgment the damp squib that some have described it as or will Owens v Owens become a pillar of the family law justice system? The answer may be both.

The ancillary issues, while commented on, were not the subject of the appeal to the Supreme Court. While the Supreme Court’s judgment has led to headlines about the denial of a divorce and forcing Mrs Owens to remain married, the reality is that the court granted permission to appeal on the basis that ‘it was argued that it was the effect of the respondent’s behaviour, rather than the behaviour itself, which should make it unreasonable to expect the petitioner to live with the respondent’ (Lady Hale). At the hearing on 17 May 2018, Mrs Owens confirmed that she was no longer pursuing that argument, a decision which Lord Wilson said was correct.

The impact of Owens in terms of the law and in terms of practice and procedure may be limited, perhaps a damp squib, but the longer term political and social impact of the case, rather than specifically the judgment, may yet mean that Owens is remembered as a turning point rather than consigned to the ash heap of history.

The Supreme Court was not asked to consider no-fault divorce and indeed does not have the power to amend section 1(2) of the Matrimonial Causes Act 1973. This remains a matter for parliament. Lord Wilson did provide some helpful guidance and reminders as to the interpretation of section 1(2)(b), commonly but it is now clear erroneously referred to as the ground of unreasonable behaviour. We are reminded that the fact in section 1(2)(b) is ‘that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent’, not that the respondent has behaved unreasonably. Lady Hale says that ‘this is a convenient but deeply misleading shorthand for a very different concept’ and that no causal connection is required. The behaviour does not have to cause the breakdown of the marriage, just as under section 1(2)(e) the cause of the breakdown of the marriage is not that the spouses have been separated for five years. Lord Wilson reminds us that it is ‘not that the behaviour should have been unreasonable but that the expectation of continued life together should be unreasonable’.

At paragraph 28 of his judgment, Lord Wilson sets out a three-stage inquiry which can be summarised as being: (a) what did the respondent do, (b) what was the effect on the petitioner, and (c) in the light of (a) and (b) is an expectation that the petitioner should continue to live with the respondent unreasonable. Lord Wilson also points out that the objective aspect of this enquiry will change over time; he ‘cannot readily think of a decision which more obviously requires to be informed by changing social norms than an evaluation whether, as a result of the respondent’s behaviour and in the light of its effect on the petitioner, an expectation of continued life together would be unreasonable’. This is enormously helpful to practitioners but perhaps not the big change that some were hoping for.

The common practice endorsed by the Law Society and Resolution to draft petitions based on section 1(2)(b) with ‘brief details’ (Law Society Family Law Protocol) is wholeheartedly endorsed. Lord Wilson says that the original criticism that the petition ‘lacked beef’ should have been a compliment and that ‘family lawyers are well aware of the damage caused by the requirement under the current law that … one spouse must make allegations of behaviour against the other… such allegations often inflame their relationship, to the prejudice of any amicable resolution of the ensuing financial difficulties and to the disadvantage of any children’.

Concerns have been raised that the impact of this judgment will be that section1(2)(b) petitions may now be drafted more aggressively. This should not be the case for anyone who reads the judgment, but of course many petitions are drafted by people who will not have read the judement, the Law Society Family Law Protocol or Resolution’s guidance. There is a legitimate concern that some petitions will now include less anodyne particulars because of the headlines about an ‘unreasonable behaviour’ divorce being denied. One must hope that in terms of everyday practice what is taken from this decision is not ‘appeal dismissed’ but Lord Wilson’s endorsement (‘an admirable summary’) of the Nuffield Foundation’s No Contest report which says that ‘the family justice system is predicated on settlement and compromise … The very active promotion of settlement at each stage, with lawyers and judges working in concert, reflects the dominant family justice perspective that agreed outcomes are less costly and damaging… and that defence is futile where one party has decided that the marriage is over’.

So in terms of the law and in terms of practice it may be a little harsh to say that the judgment is a damp squib but it would be fair to say that there is nothing new and that the current common practice is endorsed. However, in terms of the wider impact of this judgment it could still be hugely influential.

The Owens decision has been headline and front page news. The wider reporting does not focus on the intricacies of the part subjective and part objective test, nor on promoting settlement and compromise but rather on divorce law reform and no fault divorce. Lady Hale in her judgement says at the outset that ‘it is not for us to change the law laid down by parliament - our role is only to interpret and apply the law that parliament has given us’. Lord Wilson reminds us that as long ago as 2009 he had observed in Miller-Smith v Miller-Smith [2009] EWCA Civ 1297, [2010] 1 FLR 1402 that ‘our society in England and Wales now urgently demands a second attempt by parliament… to reform the five ancient bases of divorce’.

Miller-Smith did not receive the wider attention that Owens has received, and Lord Wilson’s very clear and specific suggestion at the very end of his Owens judgment that ‘parliament may wish to consider whether to replace a law which denies to Mrs Owens any present entitlement to a divorce in the above circumstances’ may well mean that Owens does indeed have a long lasting impact on the law of divorce in England and Wales. Perhaps now they will take heed of his observations in Miller-Smith, repeated in Owens and with the five ancient bases of divorce now being even more ancient.

As to what any replacement law should be, that is of course for parliament and not for the Supreme Court. Lord Wilson’s reference to the ‘damage caused by the requirement under current law’ indicates quite how urgent he now considers this reform to be. Owens has placed divorce law reform in the public’s consciousness and this, perhaps more than anything else, may convince the government and parliament to grasp the nettle. It is noteworthy that the Ministry of Justice, in response to the Owens judgment, said that ‘the current system of divorce creates unnecessary antagonism in an already difficult situation’. The increased public awareness and consequent pressure on parliament to act may be the real and significant impact of the Owens judgment.

Andrew Watson is a partner at Osbornes Law, London