The case of Owens v Owens was considered recently by the Supreme Court who rejected Mrs Owens appeal against a decision to deny her a divorce based on unreasonable behaviour.

Mrs Owens is 68; her husband 80. They have been married for 40 years.

She applied for a divorce in 2015 based on her husband’s unreasonable behaviour, citing 27 examples.

Unusually he defended the petition stating that he and his wife had learnt to “rub along”.

At the time of the hearing they had separated and lived next door to each other.

The trial Judge had only previously tried one defended divorce – He heard the parties’ evidence and described the wife’s allegations as flimsy and exaggerated and described Mrs Owens as “more sensitive than most Wives”.  He applied the legal test under section 1 2 (b) of the Matrimonial Causes Act 1973 which is an objective test with subjective elements. He denied Mrs Owens a divorce but found the marriage had broken down.

Mrs Owens appeal to the Court of Appeal was dismissed so she appealed to the Supreme Court. Reluctantly it also dismissed her appeal on the basis that the trial Judge had applied the correct legal test, but it did state that Parliament may wish to consider replacing a law which denied Mrs Owens an entitlement to a divorce in her circumstances.

The test the Judge had to apply is set out in a Statute which is now 45 years old and Society and marriage has changed. Whilst defended divorces are rare (in 2016 of 114,000 petitions filed, 800 were defended and 17 went to trial) is it right that the law denies a party a divorce in a marriage which the Court finds has broken down irretrievably?

Resolution has lobbied Parliament to review the law so there are no fault divorces and the MOJ has now said it is looking closely at possible reforms to the system.

If you require any advice or assistance with divorce or separation related issues, please speak to Simon Gummer our Family Law Partner on 01638 560556 or email him at sgummer@edmondsonhall.com