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Getting together (legally) might have become easier but breaking up is still a matter for the courts

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It is not  that often that the highest court in the land, the Supreme Court, deals with matters of private Family Law but in the past few months, it has heard not one but 3 such cases.

Owens – examined the grounds for divorce and asked if it is possible to grant a no-fault divorce.

Steinfield and Keiden – asked if Civil Partnerships are discriminatory and at odds with Human Rights legislation, given that they only available to same sex couples.

And Mills provided clarity on whether an ex spouse can look to increase maintenance payments after spending all their capital previously awarded on divorce.

Fiona Wilson, Partner in Goodman Derrick’s Family team looks at each case in turn.                            

Why are these latest decisions so important?

The significant importance of this is that a decision of the Supreme Court is binding on all lower courts and the decisions which have recently been made are especially interesting as the matters the judges were asked to adjudicate on are ones where the views of society today are considerably different from what they were at the time when the existing legislation was brought into force.


We have just had the decision on the Owens case which dealt with the issue of grounds for divorce available to a spouse. The legislation governing the divorce process was enacted in 1973 and focuses largely on one spouse having to show fault on the part of the other causing the marriage to break down, rather than allowing divorce on a ‘no fault’ basis. It often causes a considerable level of disbelief when we have to explain to our clients that there is no option available now to start proceedings until at least 2 years of separation have elapsed.

There is a growing appetite nowadays for such ‘no fault’ divorces to be permitted with recognition that having to lay the blame for the breakdown of the marriage at one person’s door can often lead to more acrimony and bad feeling in an already difficult situation. Most cases where parties want to be divorced now, without having to wait for 2 years,  proceed on the basis of wording being largely agreed between parties and their lawyers to avoid causing upset and distress but in situations, such as the Owens case where the ‘respondent’ spouse refuses to accept their behaviour may have led to the breakdown of the marriage and to allow the petition to proceed as undefended for whatever reason, the court still has to hear evidence from both parties and then essentially decide whose evidence they prefer and whether or not  the statutory thresholds to allow the divorce have been met.

Mrs Owens’ appeal was dismissed by the Supreme Court but there were a significant number of references in the judgment to the judges feeling uneasy about aspects of the case and misgivings about the original judgment. However it was also made clear that no matter what those misgivings were, from a technical perspective the original judge was right to refuse to allow the divorce as it was pleaded.

What does the decision in Owens mean?

Only a change in the law brought in by new legislation will allow a move to a no fault divorce system and a move away from the possibility of having one spouse refusing to allow the other to be divorced, even though they cannot be forced to live with each other.

Steinfeld and Keiden

New legislation will also be required to deal with the decision in the case brought by Ms Steinfeld and Mr Keiden against the government where the Supreme Court held that the scenario where Civil Partnerships are only available to same sex couples is discriminatory and at odds with Human Rights legislation.

What does the decision mean for Civil Partnerships?

The decision itself will not allow opposite sex couples to have a Civil Partnership but the government must now decide whether to extend the otion to everyone or to repeal the 2006 legislation on the basis that same sex couples have been able to marry since 2013.


In the third case, the Supreme Court was asked to look at a case where the parties had divorced in 2002. At that time there was a sharing of capital assets but the husband was also required to pay maintenance to his wife. By 2015, the husband was applying to court to try and have the maintenance order terminated whereas the wife wanted the payments increased because she had spent all the capital she had been given and said that the maintenance was not enough to meet the costs of her now having to rent a property. The judges decided not to give the wife any increase in the maintenance payments, which was good news for the husband, but were not prepared to terminate the payments completely which was good news for the wife.

At the time the order was originally made in 2002, there was a general view from the court that maintenance orders were to last indefinitely rather than for a fixed term. This approach has shifted and orders made today would be much more likely to be for a specific number of years.

What does the decision mean?

This recent decision of the Supreme Court does not yet mean that the days of the maintenance for life are finished but it does make clear that where capital assets are shared on divorce but one party then spends all their share of the assets, they cannot expect to see their former spouse being told to pay more by way of maintenance.

It will be interesting to see what happens next!


Owens v Owens [2018] UKSC 41

R (on the application of Steinfeld and Keidan) v Sec of State for International Development (in substitution for the Home Secretary and Education Secretary) [2018] UKSC 32

Mills v Mills [2018] UKSC 38

This guide is for general information and interest only and should not be relied upon as providing specific legal advice. If you require any further information about the issues raised in this article please contact the author or call 0207 404 0606 and ask to speak to your usual Goodman Derrick contact.