23 March 2018
Mr and Mrs Owens have been married for 37 years but sadly Mrs Owens feels that their marriage has irretrievably broken down and petitioned for divorce in 2015.
However, as Mr Owens had not committed adultery, and the parties had not been separated for two years, the only available route was to allege unreasonable behaviour.
This is a fairly standard approach, so far.
In most cases a so called ‘unreasonable behaviour’ petition is agreed before it is lodged at the court. This works in almost all divorce cases because both parties accept (however reluctantly) that the marriage is over. They do not want to have an expensive, difficult and public battle over the details of their married life.
Mr Owens chose to defend the divorce, claiming that the marriage could be saved.
When it came to trial, the judge was presented with all the relevant facts and law, listened to both parties, and, somewhat surprisingly, decided to dismiss Mrs Owen’s petition. Judge Tolson found that she had failed to prove that Mr Owens has behaved in such a way that she cannot reasonably be expected to live with him. He recognised that the effect of his decision was to ‘leave them stymied in lives neither of them wish to lead.’
Mrs Owens appealed to the Court of Appeal on the basis that the judge was wrong and had failed to properly assess the impact of her husband’s behaviour, and had failed to apply the law properly to the facts.
The Court of Appeal found that the judge had applied the correct test and had not made any errors; they could not overturn his decision. In this case he had found that Mrs Owens’ petition was ‘hopeless’, ‘scraping the barrel’ and ‘lacked beef because there was none’ and that the allegations ‘are at best flimsy’.
Interestingly, the judge had also found that Mrs Owens had exaggerated the context and seriousness of the allegations to a significant extent, and that they were all at most minor altercations of a kind to be expected in a marriage. He said that her case might have found favour if he had been satisfied both that the incidents were examples of a consistent and persistent course of conduct and took place as the wife described, Mrs Owens also argued that the decision breached her Human Rights but the Court of Appeal found that there was no Convention right to be divorced nor, if domestic law permits divorce, is there any Convention right to a favourable outcome in such proceedings.
Time for reform?
Sir James Munby, President of the Family Division, gave the lead judgment for the Court of Appeal, he said that parties use unreasonable behaviour petitions by means of a consensual, collusive, manipulation of the law in order to become divorced. It is not so very different to the old fashioned ‘hotel divorce’ where a charade was played out in front of the chambermaid or private inquiry agent in order to show that adultery had been committed.
This decision has resulted in renewed calls for a no fault divorce, so that parties can dissolve their marriages without either waiting several years or blaming their spouse for the marriage breakdown.
In fact the reform that was proposed in 2015, which would have allowed for a joint petition for divorce without blaming either side, probably would not have helped Mrs Owens as both sides had to agree. However, perhaps if Mr Owens did not feel he was being blamed he might have felt differently.
Whilst I can see that if both sides agree to a divorce there is an argument that they should be able to exercise their autonomy to end their marriage without interference, I can also see that Mr Owens was exercising his legitimate right to defend the divorce, and I am not sure that justice is better served by preventing him from doing that. This is certainly an issue worthy of public debate and parliamentary attention.