The judgement in the case of Owens and Owens on 24th March 2017 was widely covered in the media with criticism of both the judiciary and the state of the law.
The facts of the matter were that Mr and Mrs Owens, aged 79 and 67 respectively, separated after a 37-year marriage in 2015. Mrs Owens brought a petition seeking to prove the irretrievable breakdown of the marriage by alleging that Mr Owens had behaved in such a way that it was unreasonable to expect her to continue to live with him.
Contrary to popular belief
A quick detour into the law: contrary to popular belief there is only one basis for dissolving a marriage which is that it has irretrievably broken down. There are five available grounds for proving that irretrievable breakdown
- Unreasonable behaviour
- Desertion for 2 years
- Separation for 2 years plus the other party’s consent
- Separation for 5 years
In respect to an unreasonable behaviour petition, the practice has come about that – provided a respondent to a petition indicates that he or she will not defend the divorce – they are at the same time allowed to say that they do not accept the allegations made are in any way true. The Judge examining the case on a paperwork basis only will then allow the petition to proceed provided there is some allegation of unhappiness caused by the respondent or some criticism levied at him or her.
Encouraged to make allegations as mild as possible
There is active encouragement both in the Law Society Family Law Protocol and from Resolution (the representative body for family practitioners) to make allegations of behaviour as mild as possible, so as to cause the minimum offence and to enable the parties to divorce in as civilised a way as possible without having to wait for a 2-year period to pass. This is especially relevant where the parties agree that there should be a divorce but do not agree how to divide their family finances to enable them to live in separate properties and need the guidance of a court, or in the cases where each spouse needs separate pension income from a pension sharing order which can only be achieved in the context of a divorce.
It is worrying then for those acting and advising in this area of law to find so little support from the judiciary when this approach is challenged by a husband whose motives for defending the petition must be presumed to be financial as Mr and Mrs Owens no longer lived together.
No one wants a return to acrimonious allegations
No one really wants a return to pages and pages of allegations that are hurtful and acrimonious, simply to ensure that they will be passed fit by a Judge. It must be sincerely hoped that the Judges will not change their practice with regard to undefended petitions in the light of this judgement. The lead Judge in the Court of Appeal commented that the particulars of behaviour set out initially in Mrs Owen’s petition would not have caused any problem for a Judge where the petition was unopposed.
What this does mean is that it will become more necessary to seek to agree the allegations of behaviour before any petition is lodged with the court. It will still be (I suggest) unusual for the “average” man or woman to make the effort to defend a petition relying on his or her unreasonable behaviour. If there are other areas of dispute, say over finances or the arrangements for the children, these should be the focus of people’s efforts to reach a resolution. The wording of a petition should properly be seen as a means to an end.
Where one party simply does not want to be divorced, careful drafting is required
But there will be cases where for financial reasons or feelings of principle, one party will simply not want to be divorced. It is now essential that proper advice is taken as to the available grounds to prove irretrievable breakdown of the marriage and if the only ground is the other party’s behaviour, then careful drafting will be required, referring to incidents which would make the reasonable “man or woman on the Boris Bus with their Oyster Card in 2017” (to quote the judgement) agree that it was behaviour that it was not reasonable to expect that petitioner to live with.
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