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In Owens v Owens [2017] EWCA Civ 182 the three justices, including the president of the family division, Sir James Munby, observed that parliament had not found that being in a ‘wretchedly unhappy marriage’ was a lawful ground for divorce for which it was the court’s duty to apply.

In last year’s Central Family Court ruling, Mr Owens had successfully argued that, despite his alleged unreasonable behaviour and his wife’s affair with another man, the 39-year marriage had not legally broken down irretrievably.

Before the appeal court last month, Mrs Owens’ barrister, argued that it was ‘extremely unusual’ for a court to dismiss a divorce petition and urged the judges to consider the ‘cumulative effect’ of Mr Owens’ behaviour. However, Munby P, Lady Justice Hallett, and Lady Justice Macur, agreed that despite the evidence before them, Mr Owens had not behaved in a way that meant Mrs Owens cannot reasonably be expect to live with him under section 1(2)(b) of the Matrimonial Causes 1973 Act.

‘This is the law which it was the duty of Judge Tolson to apply,’ said Munby P. ‘It is the law which it is equally our duty to apply. It is well known that many hold the view that this is not what the law should be, that times have moved on since 1969, and that the law is badly out-of-date, indeed antediluvian’.

Commenting on the case, Nigel Shepherd, the chair of Resolution, said: ‘This judgment will obviously come as a disappointment to Mrs Owens, and absolutely underlines the urgent need for no-fault divorce. ‘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 case of Owens v Owens could well have a negative impact on people going through a divorce and on the family courts. It may mean that divorcing couples will have to cite much more severe examples of behaviour in order to ensure that they meet the legal test. This could well result in for more hostile and contentious discussions, as well as Court proceedings. That knock-on effect is completely at offs with the more amicable approach to family matters that was encouraged by the requirement to consider mediation before going to Court in children or financial matters, under the Family Procedure Rules 2010. The judgement will also no doubt lead to renewed calls for the introduction of no-fault divorce, a call led by the president of the Family Division, Sir James Munby, in his lead judgment.

Kawsar Ahmed

Thomas Brownrigg

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