In providing the ruling, which has resulted in family law organisation, Resolution, calling upon the government to urgently reform divorce law in England and Wales, Supreme Court judges also urged Parliament to consider changing the law.

The facts of the Owens v Owens case can be seen in our report here.  Briefly, Mrs Owens filed for divorce in 2015, claiming that that her husband had behaved in such a way that she could not reasonable be expected to live with him.  She is now 68 and her husband 80.  She had left him in February 2015 and lived in a house, owned by the couple, at the side of their matrimonial home, which was a mansion house and in which Mr Owens still lived.  Mr Owens defended the divorce saying that his wife wanted to continue an affair she was having at the time and that the man with whom she was having the affair was influencing her.  The Family Court denied the divorce.

Mrs Owens appealed the court’s ruling, but the Court of Appeal also denied the divorce.  In May this year, the case was heard by the Supreme Court.  This court has now delivered its ruling and has denied Mrs Owens’ appeal.  Mrs Owens must stay married to Mr Owens.  The only way she can now divorce him is to wait until she has been separated for five years, which will be February 2020.

Bradie Pell, head of family law at Graysons says

“Today’s outcome is very disappointing. Many lawyers, myself included, hoped that the ruling would be in favour of Mrs Owens today.  According to Resolution, since the last failed attempt to introduce no-fault divorce in 1996, 1.7 million people have ‘assigned blame’ to their divorces.  For many this reason will not be accurate and will have been used simply to speed up their divorce so they don’t have to wait at least two years. (Read our article no-fault divorce – where are we now).  Surely this case must now bring the need for the introduction of no-fault divorce to the forefront of the government’s plans and will be the catalyst for a change in divorce law that will bring it up to date.”

The Supreme Court’s judgement is based on current law, but judges said that Mrs Owens’ appeal caused ‘uneasy feelings’.  Lady Hale said that she found the case troubling, but it is for Parliament to change the law, not the courts.  She criticised the original trial, which she said was ‘not set up or conducted in a way which would enable the full flavour of his (Mr Owens’) conduct to be properly evaluated’.   She also said that she would have sent the case back to the original court to be reheard, but Mrs Owens had said that she would not want that to happen and her counsel had said such an action would have been anticipated ‘with dread’.

Nigel Shepherd, past chair of Resolution and a campaigner for no-fault divorce, said that the Supreme Court’s action ‘confirms there is now a divorce crisis in England and Wales, and the government needs to take urgent action to address it’.