On 25 July the Supreme Court handed down the decision in the divorce case concerning Mr and Mrs Owens. Mrs Owens was divorcing Mr Owens on the basis of his unreasonable behaviour however, both the first instance Court and the Appeal Court dismissed the divorce petition on the basis that Mrs Owens had not sufficiently proved the contents of her petition to allow it to proceed on the basis of Mr Owens’ unreasonable behaviour. Mrs Owens must therefore remain married to Mr Owens until at least 2020 when she can then petition for divorce on the basis of their 5 years separation.
Divorce Petitions presented on the basis of a Respondent’s unreasonable behaviour carry with them an objective test with subjective elements. The case itself was decided on its own facts but the majority now insist upon Parliament legislating for a no-fault divorce system and this case will undoubtedly increase the calls for this to be enacted. The reality of the situation is that Mrs Owens is unlikely to reconcile with Mr Owens, and she will in 2020 be granted her divorce.
For many people reading this blog, they will wonder why Mr Owens defended the divorce proceedings when his wife was unlikely to ever come back to him and eventually she will get her divorce anyway. Respondents in this situation have many reasons as to why the marriage should not be dissolved. In Mr Owens’ case, he felt that he did not cause the breakdown of the marriage, he wanted to save his marriage, and it was as a result of an affair that Mrs Owens had a few years before she petitioned for divorce that was the cause of the breakdown of the marriage. Unfortunately for Mrs Owens, she cannot obtain a divorce on the basis of her own adultery.
Should you be in a position where you wish to present an unreasonable behaviour petition it is important that you seek legal advice so that you do not end up in the same situation as Mrs Owens.
Here are some practical tips:
- Try to agree on the Divorce Petition including the allegations of unreasonable behaviour prior to issuing the divorce proceedings. It is more likely that if you do this the proceedings will not be defended and you can amend any allegations pre-issue.
- If you cannot agree on the unreasonable behaviour petition or there is some other reason as to why the draft divorce petition should not be sent to your spouse prior to issue, then make sure you have sufficient allegations of unreasonable behaviour and that you can demonstrate that this behaviour means that you cannot reasonably be expected to live with your spouse. You should also have evidence in support (although this is only needed in the event that the proceedings are defended).
- It is worthwhile however, remembering that defended divorce proceedings are extremely rare. Even when such proceedings are defended, a Decree Nisi is usually granted.
The no-fault divorce campaign by Resolution will continue, and this case highlights the need to now introduce legislation to deal with this issue. If it is any consolation, Mrs Owens will have to wait a further 2 years to get divorced, but she will get her divorce. Parliament, however, is the only legislative body that can introduce a no-fault divorce system and it remains to be seen what the government’s reaction is in relation to this judgment.
Anthony Jones is Head of Family Law and is a Resolution Accredited Specialist. For more information or a second opinion please contact him on 01457 761320 or email anthony@odonnellsolicitors.co.uk.
