The Unusual Case Of A Defended Divorce
The Unusual Case Of A Defended Divorce
Owens v Owens
Most family law solicitors will tell you that defending a divorce is highly unusual and many will go through their entire careers having never been involved in such a matter. However, the case of Owens v Owens serves as a stark reminder that a respondent does have the right to defend a divorce and the court can reject a petition based on unreasonable behaviour if it does not believe the criteria has been satisfied.
There is only one ground for divorce in England and Wales, and that is that the marriage has irretrievably broken down due to one of five factors:
- Unreasonable behaviour
- Two years separation (with the consent of the other spouse)
- Five years separation (no consent required)
To base a divorce petition on unreasonable behaviour, the petitioner must establish four to six examples of such behaviour and the court must be satisfied that the examples amount to the respondent acting in such an unreasonable manner, the petitioner can no longer tolerate living with them.
In the case of Owens v Owens, the couple had been married for 37 years. During this time, they had amassed significant assets, including establishing a business which turned over around £5 million a year and had two children.
Mrs Owens moved out and petitioned for divorce, claiming the marriage was “loveless and argumentative”. The examples she gave of unreasonable behaviour included Mr Owens prioritising work over family and making hurtful and critical remarks about her to their family and friends.
Mrs Owens admitted having an affair in 2012 and stated that her husband constantly berated her for her past actions. She also said Mr Owen’s "continued beratement", including criticising her in front of their housekeeper, rowing with her in an airport shop and not speaking during a meal.
Decision of the High Court
In a shock decision, Judge Robin Tolson QC, sitting in the High Court, rejected allegations that the behaviour described by Mrs Owens amounted to unreasonable behaviour. He stated the farmer’s attitude was simply “old school”.
Judge Tolson also described Mrs Owen’s allegations against her husband as "exaggerated" and "at best flimsy", claiming they were "minor altercations of a kind to be expected in a marriage" and "an exercise in scraping the barrel". He also found that Mrs Owens was "more sensitive than most wives" and that she had "exaggerated the context and seriousness of the allegations to a significant degree".
For his part, Mr Owens said he did not want a divorce as he had forgiven his wife for the affair and wanted them to live out the remainder of their lives together.
On to the Court of Appeal
Mrs Owens appealed the decision of the High Court on the grounds the Judge Tolson QC had failed to:
a) apply the law;
b) make essential core findings about what the husband had done;
c) assess the cumulative impact of the husband's conduct;
d) honour her rights under European Convention of Human Rights, art.8 and art.12.
The Court of Appeal dismissed the appeal. It stated the fact of being in a wretchedly unhappy marriage was not a ground for divorce under English law. There was no such thing as a "no-fault" divorce on demand, even though the modern treatment of unopposed conduct petitions made under the Matrimonial Causes Act 1973 s.1(2)(b) might suggest otherwise. Where a conduct petition was contested, courts had to apply the objective test in section 1(3) to the subjective elements of the marriage to establish whether a petitioner could reasonably be expected to live with a respondent. In this case, the court held Mrs Owen’s allegations were flimsy and fell short of what was required to justify the granting of a divorce.
Ramifications of the decision
The Court of Appeal’s decision caused a plethora of articles and comments, both in the media and in the family law arena. Many called for the abolition of fault-based divorce petitions which demand a party prove adultery, unreasonable behaviour, or desertion. Scotland is ahead of England and Wales in its approach; it allows divorce after one year of separation. Indeed, with today’s life-expectancy (50 years married is a long time if you cannot stand your spouse) and societies more liberal attitudes towards cohabitation and same-sex marriage, it seems almost Victorian that people have to prove to a court they have grounds to end their marriage.
What happens next
Mrs Owens was granted permission to take her case to the Supreme Court and we are awaiting the decision. She is supported by the family law organisation, Resolution, who are campaigning for the end to fault-based divorce. The organisation stated:
“Resolution supported Mrs Owen’s application to appeal so welcome the Supreme Court’s decision to hear her case which has significant implications for the future of divorce law in England and Wales.
“In today’s modern society, it should not be the case that someone is being forced to stay in a marriage she does not want to be part of and is now having to go to the highest court.
“Mrs Owens’ case highlights why divorce law in the UK needs to change. We need to reduce conflict and support separating couples to resolve matters amicably, rather than forcing them to play a blame game where one or both of them thinks the marriage is over. The simple fact is that this case should not have been necessary, and only by implementing a no-fault divorce system can we ensure such a situation doesn’t happen again.
“Support for no-fault divorce is growing, from family law professionals, the public and politicians. Whether it’s before or after the case is heard by the Supreme Court, the Government needs to take urgent action to bring our outdated divorce laws up to date and ensure that Mrs Owens’ experience is not repeated.”
If the Supreme Court upholds the decision of the Court of Appeal, Mrs Owens will have to wait until she is separated for five years, at which point she can apply for a divorce without her husband’s consent.
Rosie Bracher are specialist family law solicitors based in Barnstaple. If you require caring, confidential information about any issues raised in this blog, please phone us on 01271 314 904 to make an appointment