There are no winners in Owens v Owens

It is widely recognised that the way divorces are started – the behaviour cited or even the fact that ‘unreasonable behaviour’ is alleged – sets the tone for the entire process. For that reason, practitioners (following the advice of the Law Society and Resolution) have gone to great lengths to use deliberately mild examples of respondents’ behaviour.

For the most part, judges have been content to wave these petitions through without closer examination. But the Court of Appeal has acknowledged in Owens v Owens [2017] EWCA Civ 182 that this is a ‘charade’ allowing divorce to proceed, if not without fault, then at least without undue acrimony.

It was inevitable that when this practice came under the judicial spotlight it would be at great risk. No matter how many people would like no-fault divorce, that is not the law. Under section 1(2)(b) of the Matrimonial Causes Act 1973, a petitioner must demonstrate that they cannot reasonably be expected to live with their spouse. It would have been a step too far for the court to set the bar so low, and the judge in this case had made clear that the behaviour Mrs Owens had relied on was about as mild as a petition could be.

This judgment will 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. Such calls are likely to fall on deaf ears. The Conservative government, always anxious not to undermine the institution of marriage, has far more important constitutional and vote-winning issues to focus on now.

Ironically, in lamenting the failure of parliament to offer a blame-free, low-conflict route to divorce, the Court of Appeal may just have pulled the rug from under the low-blame, low-conflict practice that lawyers have developed in its place. Anodyne behaviour particulars are a ‘charade’, we are told, hypocritical, and intellectually dishonest. Surely the inevitable consequence of these comments will be closer judicial scrutiny of the particulars in future.

The Court of Appeal could have offered something in its place. It could have proposed example behaviours that district judges could cheerfully have let pass, knowing that it had been pre-approved by the president, and petitioners could reassure their spouses that there was no malice, they were simply using ‘the standard wording’.

But that, of course, would have been replacing one legal charade with another. So instead we find ourselves with the current workaround unmasked, the law criticised but unchanged, and no pointers except that behaviour particulars in future probably need to be more severe (and therefore more acrimonious).

There are no winners in this case – not the Owens’ (whose marriage has clearly broken down), not the overworked judges, and certainly not the hundreds of thousands of couples who will have to divorce in the shadow of this judgment.

Mark Harrop is a senior associate at Collyer Bristow

@modern_divorce www.collyerbristow.com