By Ruth Hawkins, partner at legal firm Turpin & Miller

THIS week, the Supreme Court heard the rather sad case of Mrs Owens v Mr Owens.

The couple married in 1978 and lived together for 37 years until 2015. Shortly after their separation, Mrs Owens started divorce proceedings. Mr Owens did not want the divorce to proceed.

This week, three years and three Court judgments later, Mrs Owens has been denied her divorce by the Courts, even though the courts acknowledge that the marriage has irretrievably broken down. She must stay married to a man she no longer lives with and no longer wants to be married to, at least for the time being.

Sad though the outcome seems for Mrs Owens, the case was decided by the Supreme Court on law that has been in place for even longer that the Owens’ marriage, since 1973.

The law states that to secure a divorce, a marriage has to break down, irretrievably. There must be evidence to prove one of five facts that the marriage has broken down and nothing else will do.

The Owens case was based on the fact that “the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent”.

The Supreme Court confirmed that what the court must do when such allegations are made and denied is:

1. Consider what the Petitioner alleges the Respondent has done.

2. Assess the impact of the proven allegations of the Respondent’s behaviour on the Petitioner

3. Evaluate whether, as a result of the Respondent’s behaviour and in the light of its effect on the Petitioner, an expectation that the Petitioner should continue to live with the Respondent would be unreasonable

The first Court carried out this assessment of Mr Owen’s behaviour and concluded amongst other things that Mrs Owens’ allegations were “flimsy”, that she was more sensitive than most wives and Mr Owens was old school. Taking such conclusions into account, Mr Owens behaviour did not make it unreasonable for Mrs Owens to live with him. The appeals did not change the decision.

Does this mean then that anyone in an unhappy marriage is now trapped until they can live apart for five years?

For most people, the answer to that will remain no, as it has been for the past 45 years. Most divorces are not defended even when behaviour is alleged.

However, where allegations of behaviour are made, they are becoming more specific and arguably more antagonistic, just in case they are disputed.

Most lawyers see this as a backward step and many support a call to change the law to allow a “no fault” divorce.

The Owens’ case has firmly established that such a change will need new law from Parliament.

Lord Wilson giving the leading judgment in the Supreme Court does not shy away from this concluding “Parliament may wish to consider whether to replace a law which denies to Mrs Owens any present entitlement to a divorce in the above circumstances”. Lady Hale adds “I have found this a very troubling case. It is not for us to change the law laid down by Parliament - our role is only to interpret and apply the law that Parliament has given us”.

The breakdown of a marriage is an emotional and difficult time and here are some tips which might help you avoid the misery, cost and publicity experienced by the Owens:

1. In all but exceptional cases you will be able to divorce if you have lived in separate households for 5 years. That does not necessarily mean living in separate properties.

2. If you have been living in separate households for two years and you are both in agreement you will be able to divorce.

3. If you have not been separated for two years, discussing and agreeing the allegations of behavior can avoid dispute. It is very rare for allegations of behaviour to affect financial matters.

4. Make the most of offers from solicitors whether for short initial appointments or reduced fee interviews to check you are on the right track if you are going to allege behaviour. This can be done with no further obligation.

5. Consider seeking out a Resolution family lawyers, as we are committed to the constructive resolution of family disputes. Our members follow a Code of Practice that promotes a non-confrontational approach to family problems.