Irwin Mitchell Private Wealth Discusses Owens Case Ahead Of May Supreme Court Appearance

The upcoming Supreme Court case of Owens v Owens has helped to shine the media spotlight on no-fault divorce, which both family law experts at Irwin Mitchell Private Wealth and the wider family law sphere have been campaigning about for years.

Mrs Owens was denied a divorce on the basis that the behaviour of her husband was not sufficiently bad that a reasonable person would not expect her to continue to live with him.  The Court of Appeal upheld that decision, finding that the judge had not made any legal error.  Mrs Owens has appealed again and the case comes before the Supreme Court on 17 May.

There is widespread support for a change in the law relating to divorce which would bring about an end to the requirement that blame or fault is attributed to one party to the marriage. The current law is set out in the Matrimonial Causes Act 1973, plus the Law Commission recommended reform in 1990.

Last year a large-scale research study by Professor Liz Trinder made proposals for changes to the law. However, successive governments have declined to take action.

But now the tide is turning: the President of the Supreme Court, Baroness Hale, has been clear in her support for no fault divorce for many years; she headed the Law Commission team that proposed reform in 1990.

With the highest ranked judge in England and Wales supporting the movement, it would appear inevitable that no-fault divorce will have its first precedent – though her role is only advisory.

Expert Opinion

“In a keynote speech to the Resolution National Conference this month, Baroness Hale set out the numerous reasons why the current law is unjust, confusing and can make a divorce more difficult and bitter for the families involved,” explained Ros Bever, National Head of Family Law at Irwin Mitchell Private Wealth.

“However she also pointed out that her opinion will in no way influence the outcome of the Owens case because it is not the role of the court at any level to change the law - it is Parliament’s job to legislate.” Ros Bever - Partner

When Owens reaches the Supreme Court, it is the judiciary’s role to interpret and apply the law that has been enacted by Parliament. The court will listen to the legal arguments and decide if Mrs Owens is entitled to a divorce, but it is not for them to decide what the law ought to be.

“They may make comments about the existing law and encourage reform in view of the unsatisfactory state of the current position, but it will be a question for Parliament whether reform actually happens,” Ros added.

We now await the Supreme Court’s decision but hope that irrespective of the outcome in this individual case, the resounding calls for no-fault divorce will resonate.