Family Law Cases to watch 2018: Owens v Owens

This divorce case has been described ‘as the most significant divorce case of the century’ and will be heard by the Supreme Court in 2018.

Owens v Owens – ‘the most significant divorce case of the century’

This year promises a host of potential changes to the way that family courts decide cases. Several high profile cases are due to be heard in either the Supreme Court or the Court of Appeal this year and the outcome of each is eagerly anticipated by family lawyers. This week we are looking at each case and its impact in detail. Today, we look at Owens v Owens - billed as 'the most significant divorce case of the century'.

Mrs Owens petitioned for divorce based on Mr Owens’ unreasonable behaviour. Mr Owens defended the divorce stating that the examples given were insufficient to justify a divorce and did not meet the relevant legal test. The court found in his favour and dismissed the petition.

On appeal, it was held that the judge had applied the law correctly and the decision could not be overturned.  The judge acknowledged that the decision left Mrs Owens “trapped in [a] loveless marriage”, but she had failed to prove that Mr Owens had behaved in such a way that she could not be expected to live with him.

Unless she is successful in the Supreme Court, Mrs Owens will need to wait until the parties have been separated for five years before being able to divorce. It is understood that it will be argued on behalf of Mrs Owens, that the weight placed by the court on whether Mr Owens’ behaviour was unreasonable was wrong, and what it is actually required to consider is whether the behaviour is such that Mrs Owens cannot reasonably be expected to live with Mr Owens. It will be argued that this is a subjective test based on what is reasonable for Mrs Owens, rather than an objective test of what a third party may deem to be reasonable.

This case highlights how out of date the current law is. Many family lawyers are lobbying for no fault divorce ( #abetterway) and hope this case, rather than making it harder to divorce, could provide an opportunity to re-visit the current law and take a step toward removing one of the more acrimonious elements of the process. 

Maybe 2018 will be the year for the Supreme Court to comment positively on this need for social change.

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