The Owens Case and the future of divorce
When Mrs Owens decided to petition her husband of over 35 years for divorce, based on his unreasonable behaviour she received the advice given across the country: that it is considered to be good practice to draft a petition in neutral and anodyne terms. This is generally considered to be best for the purposes of ensuring that the proceedings get off on the right foot and are not unnecessarily acrimonious.
Mrs Owens could not have known that her husband would defend the petition leading to contested proceedings to decide if her husband had behaved unreasonably. Even more unexpectedly the Court refused to grant her a divorce on the basis that the Court did not accept that Mr Owens had behaved unreasonably. This decision would have been fuelled by the flimsy nature of the particulars of behaviour (being neutral and anodyne).
This was a highly unusual decision which took the entire family law establishment by surprise, as the notion of unreasonable behaviour has largely been considered to be subjective and therefore very difficult to dispute if the person on the receiving end says that they felt it was unreasonable.
It has meant that the idea of drafting a neutral and anodyne petition may carry with it certain risks, if the petition is then contested by the other party. There may now be more impetus to draft more weighty particulars of unreasonable behaviour, which may in turn cause the divorce process to become more acrimonious than it needs to be.
Fortunately Mrs Owens has now been granted permission to appeal to the Supreme Court against the decision of the Court of Appeal and hopefully there will be a return to the normal course, with Mrs Owens being granted her divorce. This must be right in circumstances where one of the Court of Appeal judges hearing the case, Lady Justice Hallett, herself conceded in her judgement that ‘on any view the marriage is over’.
On the back of this case many family practitioners have called more strongly for the introduction of no fault divorce. The introduction of a faultless divorce scheme has long been discussed and there were almost legislative changes to bring this into effect in the 1990’s. Public policy has historically dictated that it should not be too easy to divorce, but the upshot of this is that many people end up trapped in unhappy marriages. This can itself be very damaging within a family, particularly where there are children who are exposed on a daily basis to a toxic relationship. On the other side of the coin some would argue that no fault divorce will result in a higher rate of divorce and therefore more economic hardship with single parent families struggling to cope.
The debate will roll on for some time but one thing that it is clear is that the decision of the Court of Appeal in the Owens case has not been helpful, seemingly pushing our fault based system to an extreme. That decision, if it is not overturned by the Supreme Court, means that Mrs Owens will have to remain married until 2020 when she will then be able to rely on the fact of five years’ separation from her husband (which would not require any form of consent from her husband in order for the divorce to go through). It is fair to say that most family law practitioners are very much hoping that good sense will prevail in the Supreme Court.