What the decision in the Owens vs Owens divorce means for you
What the decision in the Owens vs Owens divorce means for you. If you live in England & Wales, and you are thinking of, or going through divorce, its highly likely that you’ve heard of the case of Owens v Owens. The case involves Mrs Tini Owens who, after 30 years of marriage sought to divorce her husband of 30 years on the grounds of his unreasonable behaviour. Unusually, rather than make no admissions as to his behaviour, but accepting that the marriage was over, Mr Owens defended the divorce. Not only did he deny the behaviour alleged, he claimed that the marriage had not broken down, hoping that his wife would return to the relationship.
Owens vs Owens
At trial of the issues raised by Mrs Owens, the judge who heard only 4 of the 27 allegations raised found that Mrs Owens exaggerated her position. He said her claims were ‘flimsy’. The judge dismissed her claim leaving Mrs Owens to appeal to the Court of Appeal and then to the Supreme Court. Judgement was handed down on Wednesday 25th July 2018. You can watch the brief summary here: Owens v Owens.The Supreme Court found that “with reluctance” they must also dismiss Mrs. Owens claim. The court further reflected that it is for Parliament to change the divorce laws of England & Wales to reflect the changes in attitude in society. So what does this decision mean for you?
There is only one ground for divorce in England & Wales
In England and Wales, there is only one ground for divorce – your marriage must have broken down irretrievably. Mrs Owens feels that her marriage has broken down irretrievably, but her husband disagrees. He still hopes for reconciliation. Mr. Owens is an 80 year old multimillionaire. He can afford to spend money attempting to stay married. Perhaps, as many of his generation do, he feels that marriage is forever. He can, and has chosen to defend his divorce.
In reality, most people do not defend a divorce petition. It’s expensive, time consuming, and why oh why would you want to stay married to someone who doesn’t want to be married to you? So do you really need to worry? Probably not. Perhaps your soon-to-be-exhusband is threatening to defend the divorce because he doesn’t like the idea of being to ‘blame’. Once he understands that he doesn’t actually have to accept he is to blame, and once he also realises it won’t make a jot of difference to the financial settlement, he’s likely to see sense.
The Five Facts
In my article Divorce and the Five Facts -which should you choose, I explain in greater detail about the Five Facts. You use one of the Five Facts to establish that your marriage has broken down irretrievably.
Two years separation with consent
Tini Owens petitioned for divorce in 2015. If Mr Owens would only change his mind, they could get a divorce now because two years has passed. Sadly, because he won’t or he hasn’t, Mrs Owens will have to wait until 2020 until she can apply.
Two years separation is the most common ground for divorce. It doesn’t involve blame, but it is a waiting game. If you can afford the luxury of waiting – you can afford your own place and you and your soon-to-be-exhusband have enough money to survive, its a good option for both you and your children. Divorce on this basis can be more kind.
Five years separation without consent
We know that unless Mr Owens changes his mind, Mrs Owens will have to wait until 2020 to file for divorce. Mr Owens consent is not required at this stage. Of course, some people choose to get divorced after a longer separation than 5 years because it hasn’t been important for them to finalise their separation. That could be for financial, moral or religious grounds or because they just haven’t got round to it. Five years is a long time if you’re unhappy and you want to feel free.
As the Supreme Court has pointed out, our divorce law in England and Wales is out dated. It harks back to a time when the idea of ‘family’ was more prescribed than it is now, and to a time when gender roles within marriage were more clearly defined. Desertion can be argued if your spouse has left you without your consent, without good reason to end the marriage, and the desertion has lasted for more that 2 years in the last 2.5 years. You may have lived together for up to 6 months during this time. Desertion is rarely used today.
If waiting two or five years seems like its too long, or you need a financial resolution more quickly, you may use the ground of unreasonable behaviour. The Supreme Court clarified that this is behaviour such that it is unreasonable to expect the other person to stay in the relationship.
Tini Owens argued that her husband could be ‘moody’ and ‘authoritarian’. At trial these claims were dismissed by the judge. Interestingly, and rightly in my view, the court has questioned the trial judge’s lack of consideration of the impact of Mr Owens behaviour upon Mrs Owens, recognising that its not just the behaviour itself that is important, but the effect of the behaviour on the other party. When using unreasonable behaviour as your fact, ensure that you pick no more than a handful of examples (not 27 at Tini Owens apparently did), and talk about the impact of this behaviour on you.
Probably one of the best known facts cited for divorce in England and Wales, Adultery is the fact that often causes the most upset. Adultery can only be used if you can establish (or it is accepted), that your husband has had sexual intercourse with a member of the opposite sex, and that no more than 6 months has passed since you found out about it. It is possible to name the other party in the divorce petition, but in doing so, they become a party to the divorce and are served with all the paperwork. This is not usually recommended, causing more problems, acrimony and ultimately costing you more money. Worded correctly, your husband’s adultery can be used as an example of why it’s unreasonable to expect you to stay in the relationship.
Why oh why would you want to stay married to someone who doesn’t want to be married to you?
Avoiding the Owens vs Owens situation
The reason the Owens case is of such significance, is in my view, two fold. Firstly, it’s very rare. Very rare indeed. Most people even if somewhat reluctantly, will agree to divorce if their partner no longer wants to stay married. Even if a controlling soon-to-be-exhusband threatens derailing the process, it’s often the case that in reality, they will consent. They may go on to create difficulties later on when it comes to discussing finances or arrangements for the children for example.
Secondly, many voice such as Resolution have been campaigning for a #nofaultdivorce system here in England and Wales. Alive and working well in places like New Zealand, a no fault divorce system would remove the need to find blame in order to exit a marriage that is over, without having to wait two or even (as in the Tini Owens case), five years.
So how do you avoid a situation like Tini Owens? If you want a divorce, discuss it with your husband if its safe for you to do so. If its not physically or emotionally safe, you can seek support from organisations like Women’s Aid-remember to hit the ‘cover my tracks’ button before you leave the website. You can also contact a solicitor to see if you will qualify for legal aid because of abuse.
If you are safe, consider going to relationship counselling at an organisation such as Relate. You can do this even if you are certain the relationship is over – it can be useful for you to have the support of an independent third party to support you to express yourself and for your husband to be supported to listen to what you have to say.
Ensure that if you are using ‘unreasonable behaviour’, that you choose a handful of good solid examples and talk about the impact upon you. In the ideal world, you can actually discuss these examples with your husband so he know what you are saying and why. If he’s aware of the contents of the petition, he’s less likely to object. As a divorce coach, I have helped many people draft these details and help them communicate these to their soon-to-be-ex-partners.
Finally, remember that many legal professionals continue to campaign for #nofaultdivorce. Change may come too late for Tini Owens, but it might not be too late for you.
Emma Heptonstall The Divorce Alchemist is author of the Amazon best selling book How to be a Lady Who Leaves the Ultimate Guide to Getting Divorce Ready. A former lawyer, Emma is a practising family mediator and founder of Get Divorce Ready the online self study and group programme to help you get control of your divorce before it gets control of you. Emma has been featured on BBC Radio, The Telegraph, the iPaper and in Marie Claire Magazine. To find out more visit www.emmaheptonstall.com