Authored By: Sienna Louise Warren
Aston University
Case Citation and basic information
The case considered in this summary is Owens v Owens [2018] UKSC 41, decided by the Supreme Court of the United Kingdom, dated 25th July 2018[1]. The bench composed of Lady Hale, Lord Wilson, Lord Hodge, Lord Mance and Lady Black. This case is concerned with family and divorce law and regards the Matrimonial Causes Act 1973, particularly section 1(2)(b)[2]. The decision later gained significant relevance in discussions surrounding the reform introduced by the Divorce, Dissolution and Separation Act 2020[3].
Introduction
Owens v Owens concerned the interpretation of section 1(2)(b) of the Matrimonial Causes Act 1973, specifically whether a spouse had behaved in such a way that the petitioner could not reasonably be expected to continue living with them. The case arose after Mrs Owens petitioned for a divorce on the basis of her husbands alleged behaviour, despite the husband contesting the decision. Even though the Supreme Court acknowledged that the marriage had irretrievably broken down, the court dismissed the appeal and held that the statutory requirements for the divorce had not been satisfied. The decision attracted significant public and academic criticism due to the perceived rigidity of fault based divorce law and subsequently became influential in discussions leading to the enactment of the Divorce, Dissolution and Separation Act 2020. Legal scholars such as Johnathon Herring argued that the case exposed the limitations of fault based divorce and emphasised the growing tension between outdated statutory requirements and modern understandings of marriage[4].
Case Facts
Mr and Mrs Owens had been married for approximately 40 years and had two adult children together. Over time, their relationship deteriorated, eventually causing Mrs Owens to leave the matrimonial home in 2015. Following the separation, Mrs Owens filed for divorce under section 1(2)(b) of the Matrimonial Causes Act 1973, claiming that the marriage had irretrievably broken down due to her husband’s behaviour.
In support of her petition, Mrs Owens relied on 27 examples of behaviour which included a lack of affection, disparaging comments, argumentative behaviour, and prioritising work over family life. She argued that this behaviour made it unreasonable for her to continue living with her husband. Despite how Mr Owens denied very few of the allegations, he defended the divorce petition on the basis that the conduct described was insufficient to satisfy the legal threshold required under section 1(2)(b).
At first instance, the trial judge accepted that the marriage had broken down; he agreed with Mr Owens and described Mrs Owens’ arguments as “flimsy”. The judge therefore concluded that Mrs Owens could still reasonably be expected to live with her husband and dismissed the petition. Mrs Owens later appealed to the Court of Appeal, but the decision was upheld. Dissatisfied with the outcome, she appealed to the Supreme Court.
Legal Issues
Issue 1
Whether Mr Owens had behaved in such a way under section 1(2)(b) of the Matrimonial Causes Act 1973 that Mrs Owens could not reasonably be expected to continue living with him.
Issue 2
Whether, when applying section 1(2)(b), the court should focus primarily on the respondent’s behaviour itself or on the effect that behaviour had on the petitioner.
Issue 3
Whether the trial judge correctly applied the legal test under section 1(2)(b), including consideration of the cumulative effect of the alleged behaviour and the overall circumstances of the marriage.[5]
Arguments Presented
Appellant’s Arguments
- Mrs Owens argued that the trial judge had applied section 1(2)(b) of the Matrimonial Causes Act 1973 too narrowly.
- It was submitted that insufficient weight had been given to the effect that Mr Owens’ behaviour had on Mrs Owens herself.
- The appellant further argued that the court failed to properly consider the cumulative effect of years of conduct and instead focused too heavily on isolated incidents.
- Reliance was placed upon earlier authorities including Livingstone Stallard v Livingstone Stallard[6].
- Counsel also argued that modern social expectations surrounding marriage and equality should influence the interpretation of section 1(2)(b).[7]
Respondent’s Arguments
- Mr Owens argued that the allegations relied upon by Mrs Owens were exaggerated and insufficient to satisfy the statutory threshold.
- It was submitted that the trial judge had correctly applied the legal test under section 1(2)(b).
- The respondent maintained that the behaviour complained of did not make it unreasonable for Mrs Owens to continue living with him.
- Mr Owens further argued that the appellate courts should be reluctant to interfere with the factual findings of the trial judge.
- The respondent relied upon established interpretations of section 1(2)(b) and argued that the focus must remain on the respondent’s behaviour rather than solely on the petitioner’s reaction to it.[8]
Court’s Reasoning and Analysis
The Supreme Court rejected Mrs Owens’ proposed interpretation of section 1(2)(b) of the Matrimonial Causes Act 1973. The court held that the assessment could not focus solely on the petitioner’s feelings or subjective reaction to the marriage. Instead, Lord Wilson explained that the statute required consideration of the respondent’s behaviour alongside the effect that behaviour had on the petitioner. In paragraph 28, the court reaffirmed the established three stage test under section 1(2)(b)[9]. First, the court must determine the behaviour on the particular petitioner. Finally, the court must evaluate whether, in light of all circumstances, it would be unreasonable to expect the petitioner to continue living with the respondent.
The Supreme Court also considered a number of previous family law cases when deciding how section 1(2)(b) should be applied. Lord Wilson referred to authorities such as Livingstone Stallard v Livingstone Stallard, Thurlow v Thurlow[10] and Buffery v Buffery[11] to show that the egal test had already been clearly established. These cases confirmed that a petitioner does not need to prove particularly serious or blameworthy behaviour to succeed. The court further accepted that the assessment must involve both objective and subjective considerations by examining not only the respondent’s behaviour itself, but also the effect it had on the petitioner within the context of the marriage as a whole. Johnathon Herring similarly notes that behaviour based divorce petitions under section 1(2)(b) require courts to balance objective legal standards with the individual emotional circumstances of the parties involved[12].
Despite several of the judges having expressed discomfort with the outcome of the case, the Supreme Court emphasised that appellate courts should be more reluctant to interfere with findings of fact made by a trial judge who had heard the evidence directly. Lord Wilson acknowledged the “uneasy feelings” created by the decision, specifically regarding the way the hearing had been conducted and the evaluation of Mrs Owen’s allegations[13]. However, the court concluded that there was insufficient basis to overturn the trial judge’s assessment. The judges stressed that dissatisfaction with the current state of divorce law could not justify a judicial reinterpretation of section 1(2)(b) past the wording intended by Parliament. As a result, the appeal was dismissed, even though there was clear judicial concern surrounding the fairness of the outcome.
Lady Hale agreed that the appeal should be dismissed; however, she criticised several aspects of the trial process and expressed concern regarding the way Mrs Owens’ case had been assessed. In particular, Hale argued that the cumulative effect if years of conduct had not been properly evaluated and that the hearing itself was not structured in a way that allowed the full nature of the behaviour to be examined. She also warned that the phrase “unreasonable behaviour” was misleading, as the law under section 1(2)(b) does not require blame or fault om the part of the respondent[14]. Although Lady Hale acknowledged the limitations of the existing law, she maintained that it was Parliament, rather than the courts, that held responsibility for reform.
Judgement and Ratio Decidendi
Mrs Owen’s appeal was dismissed, with the Supreme Court upholding the earlier decisions of both the trial court and the Court of Appeal. The court held that Mrs Owens was not entitled to a divorce under section 1(2)(b) of the Matrimonial Causes Act 1973, as there was insufficient basis to overturn the trial judge’s evaluation of the evidence. Several of the judges acknowledged that the marriage had clearly broken down and expressed discomfort with the outcome; however, the court maintained that it was required to apply the law as enacted by parliament. No further remedy or order was granted, though the judgement suggested that the reform if the existing divorce law may be a matter for Parliament’s consideration.
The ratio decidendi established by the Supreme Court was that, under section 1(2)(b) of the Matrimonial Causes Act 1973, the court must determine whether the respondent’s behaviour, assessed objectively but in light of its effect on the particular petitioner, makes it unreasonable to expect continued cohabitation. The case further confirmed that the irretrievable breakdown of a marriage alone is insufficient unless one of the statutory facts is established successfully.
Critical Analysis
The decision in Owens v Owens attracted significant criticism for exposing the limitations of fault based divorce law in England and Wales. Many critics argued that the judgement prioritised a strict interpretation of section 1(2)(b) of the Matrimonial Causes Act 1973 over the practical reality that the marriage had clearly broken down. The decision also reflected wider concerns that divorce law had failed to evolve alongside modern social expectations of marriage and personal autonomy. The Ministry of Justice later acknowledged similar concerns in its consultation paper, ‘Reducing Family Conflict’, which criticised the adversarial nature of fault based divorce proceedings[15]. The Supreme Court itself acknowledged the uncomfortable nature of the outcome, particularly given that several judges accepted Mrs Owens could not longer realistically continue the marriage. Despite this, the court refused to reinterpret the statutory requirements beyond the wording enacted by Parliament. This demonstrated the judiciary’s commitment to parliamentary sovereignty and judicial restraint, as the judges considered it was inappropriate to effectively rewrite divorce law through judicial interpretation.
The judgement also highlighted wider concerns surrounding the operation of fault based divorce. The requirement to prove behaviour under section 1(2)(b) was criticised for encouraging conflict between spouses and forcing petitioners to rely upon personal allegations to secure a divorce. Research conducted by Liz Trinder and Mark Sefton for the Nuffield Foundation further concluded that fault based divorce frequently increased hostility between spouses and encouraged exaggerated allegations to satisfy the statutory requirements[16]. Lady Hale’s judgement further strengthened these criticisms by arguing that the cumulative effect of years of demeaning and dismissive conduct had not fully been assessed during the original hearing. Her observations suggested that the legal process struggled to adequately recognised emotional harm and coercive marital dynamic that develop gradually over time.
Meanwhile, the decision can be viewed as legally consistent. The Supreme Court carefully followed established precedent and avoided extending the meaning of the statute beyond its intended scope. Because of this, the court reinforced the constitutional principle that substantial reform of divorce law should be carried out by Parliament rather than the judiciary. Herring argues that the Supreme Court’s approach reflected a deliberate commitment to parliamentary sovereignty and judicial restraint, despite widespread concern regarding the fairness of the outcome[17].
Conclusion
In conclusion, Owens v Owens exposed the limitations of fault based divorce law under section 1(2)(b) of the Matrimonial Causes Act 1973 and emphasised the tension between strict legal interpretation and the practical reality of marital breakdown. The Supreme Court confirmed that the irretrievable breakdown of a marriage alone was insufficient unless one of the statutory facts could be successfully established. In reaching this decision, the court reinforced the principle that reform of divorce law was a matter for Parliament rather than the judiciary.
The case is now widely remembered for demonstrating the difficulties created by defended divorce proceedings and for increasing pressure for reform in England and Wales. Its long term significance can be seen in the later introduction of the Divorce, Dissolution and Separation Act 2020, which addressed many of the concerns highlighted throughout the judgement.
Bibliography
Cases:
Buffery v Buffery [1988] 1 WLUK 664
Livingstone-Stallard v Livingstone-Stallard [1974] Fam 47
Owens v Owens [2018] UKSC 41
Thurlow v Thurlow [1976] Fam 32
Legislation:
Divorce, Dissolution and Separation Act 2020
Matrimonial Causes Act 1973 s 1(2)(b)
Secondary Sources:
Herring J, Family Law (11th edn, Pearson 2023)
Ministry of Justice, Reducing Family Conflict: Reform of the Legal Requirements for Divorce (Consultation Paper CP 58, September 2018)
Trinder L and Sefton M, No Contest: Defended Divorce in England and Wales (Nuffield Foundation 2018
[1] Owens v Owens [2018] UKSC 41
[2] Matrimonial Causes Act 1973, section 1(2)(b)
[3] Divorce, Dissolution and Separation Act 2020
[4] Johnathon Herring, Family Law (11th edn, Pearson 2023) 112
[5] Owens v Owens [2018] UKSC 41 [28], [54]-[61], [322]-[343].
[6] Livingstone-Stallard v Livingstone-Stallard [1974] Fam.47
[7] Owens v Owens [2018] UKSC 41 [16]-[21].
[8] Owens v Owens [2018] UKSC 41 [22]-[25]
[9] Owens v Owens [2018] UKSC 41 [28]-[30]
[10] Thurlow v Thurlow [1976] Fam. 32
[11] Buffery v Buffery [1988] 1 WLUK 664
[12] Johnathon Herring, Family Law (11th edn, Pearson 2023) chapter 3
[13] Owens v Owens [2018] UKSC 41 [44]-[46]
[14] Owens v Owens [2018] UKSC 41 [49]
[15] Ministry of Justice, Reducing Family Conflict: Reform of the Legal Requirements for Divorce (Consultation Paper CP 58, September 2018) 9-10
[16] Liz Trinder and Mark Sefton, No Contest: Defended Divorce in England and Wales (Nuffield Foundation 2018) 7-9
[17] Johnathon Herring, Family Law (11th edn, Pearson 2023) 147-149
