The case of Owens v Owens – Is no-fault divorce on the horizon?

At present, anyone wishing to divorce must prove one of five facts in order to show that their marriage has irretrievably broken down, namely:

  • Adultery
  • Behaviour that means you can no longer be reasonably expected to live together
  • Desertion
  • Separation for more than two years but your spouse has to agree to the divorce
  • Separation for at least five years but in that case you do not need the consent of your spouse.

If someone wishes to divorce before a five-year period of separation (or their spouse does not agree after two years of separation) they have to rely on a fault based petition e.g. adultery or behaviour. This often creates animosity and can lead to resentment in the future which can make having a continuing relationship (e.g. for the sake of any children) difficult. It can also make it harder to reach a financial agreement.

The problems associated with the existing law in relation to divorce became evermore apparent during the 2018 case of Owens v Owens. The case was reported in the national news and many commented that the outcome of the case was unfair.

In May 2015 Mrs Owens filed a petition on the basis of Mr Owens’ behaviour and she stated that she could not be reasonably expected to live with him as a result. Ordinarily fault based petitions proceed undefended as the costs of defending a petition are very expensive.  In this case Mr Owens decided to defend the petition and tried to argue that the examples given by Mrs Owens did not mean they could no longer live together. The Judge in the first instance agreed with Mr Owens that the examples provided were insufficient but he also commented that he believed the marriage had irretrievably broken down.

Mrs Owens appealed the decision and ultimately the case ended up being considered by the Supreme Court (the highest Court in England and Wales). However, judgment was handed down in July 2018 and once again Mr Owens succeeded thus preventing Mrs Owens from obtaining a divorce. It was clear that the Judges of the Supreme Court had reluctantly made the decision and were sympathetic towards Mrs Owens’ plight. The decision meant that Mrs Owens had to wait for 5 years’ separation in order to obtain a divorce despite the fact they had been living separate lives for some time and all of the Judges agreed that their marriage had irretrievably broken down.

This land mark case has resulted in many calling for Parliament to change the law allowing for no-fault divorce. The Government announced in April 2019 that it would implement new legislation removing the requirement to prove one of the five facts and instead anyone wishing to divorce would just need to confirm to the Court that their marriage has irretrievably broken down. The draft legislation appears to suggest that you will still have to be married for at least a year though before you can petition for a divorce.

However, it is not the first time that Parliament has proposed a law allowing for no-fault divorce. The Family Law Act 1996 was supposed to implement no-fault divorce but it was never put into force and was subsequently repealed. Although it is positive for many married couples who wish to separate that Parliament is considering changing the law, it is currently unclear as to when the law will be changed (if at all). Furthermore, the proposed new procedure will need to be agreed by Parliament and may be amended. There is also the added difficulty that the Government’s attention will be directed at resolving Brexit and any aftermath of England leaving the European Union. This may mean that the push for no-fault divorce is lost in the multitude of decisions which need to be made in light of Brexit. Therefore, until a new law is passed, those wishing to divorce will still need to prove one of the above listed facts.

If you are experiencing difficulties in your relationship, please speak to a member of our Family Department, either Rebecca Bye, Lachlan Donaldson or Robert Green on 01622 759051 or email