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Supreme Court Judgment in Owens v Owens published today

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The Supreme Court today handed down its judgment in the long-running case of Owen v Owens.   The case concerns a married couple, Mr and Mrs Owens, who were married in 1978.  They have two adult children.   Mr and Mrs Owens separated in February 2015.   In May 2015, Mrs Owens issued a divorce petition.    The petition alleged that the parties’ marriage had broken down irretrievably and that Mr Owens had behaved in such a way that Mrs Owens could not reasonably be expected to live with him.  The petition was drafted in what was described as “anodyne” terms by the Supreme Court.   Mr Owens chose to defend the divorce suit.   

At the substantive hearing of the dispute, Mrs Owens (having been granted permission by the Court to do so beforehand) amended her petition so as to include 27 individual examples of Mr Owens’ alleged behaviour, including being ‘moody’, ‘argumentative’ and ‘disparaging [her] in front of others’.   

The judge at first instance found that the parties’ marriage had broken down irretrievably, but that Mrs Owens’ allegations of behaviour were “flimsy and exaggerated” and the particular incidents which Mrs Owens opted to highlight at the hearing were isolated incidents.  The Court thus dismissed Mrs Owens’ petition on the grounds that the test under Section 1(2)(b) of the Matrimonial Causes Act 1973 (MCA 1973) had not been satisfied.   Mrs Owens subsequently appealed to the Court of Appeal and, after that appeal was dismissed, she appealed to the Supreme Court in a final effort to persuade the Court to grant a decree nisi of divorce.  

The appeal was unanimously dismissed by the Supreme Court.  The Supreme Court confirmed that, when applying the legislation and, in particular, Section 1(2)(b) of MCA 1973,  the correct test to apply is:

  • by reference to the allegations of behaviour in the petition, to determine what the respondent did or did not do;
  • to assess the effect which the behaviour had had upon this particular petitioner in light of all of the circumstances in which it occurred;
  • to make an evaluation as to whether, as a result of the respondent’s behaviour, and in light of its effect on the petitioner, an expectation that the petitioner should continue to live with the respondent would be unreasonable. 

Whilst the Supreme Court expressed sympathy with Mrs Owens’ position, they unanimously dismissed her appeal, finding that the judge at first instance had applied the correct test. 

The judgement in Owens will no doubt fuel calls for the introduction of no-fault divorce. The majority of the presiding judges did invite parliament to consider replacing the current law, which has effectively denied Mrs Owens a divorce until 2020, when she and Mr Owens will have been separated for five years.    Whether such legislation will see the light of day remains to be seen. 

For further information regarding the continued debate surrounding no-fault divorce, please see the previous articles posted by John Boon in December 2016 and Joel Tweddell in March 2017.     

Here at Roythornes, a member of our specialist Family Law team will be able to advise on the divorce process, or any related family law issues.   We regularly deal with cases in the East Midlands, East Anglia, Kent and beyond.  The team is happy to accommodate a meeting at any of Roythornes' offices in Spalding, Peterborough, Nottingham or Alconbury, by telephone, or by Skype/video conferencing.   

Please do not hesitate to contact a member of the Family Law team by telephone – 01775 842500 – to discuss matters.   Alternatively, please send an e-mail to