The Supreme Court handed down its judgment on 25 July 2018 dismissing Mrs Owens’ appeal. Mrs Owens has to stay married to Mr Owens. She is now 68 and he is 80. However, it is grounds for divorce that you can petition after 5 years without requiring the other person’s consent. Mrs Owens can go ahead with another divorce petition therefore this Autumn.
This case has gone to the Court of Appeal and ultimately to the Supreme Court. We ask ourselves what happened.
As in many cases of divorce, Mrs Owens issued a divorce petition on the grounds of Mr Owens' unreasonable behaviour. Professional body pleading Resolution, together with Family Law protocol encouraged solicitors to apply only a light touch to the examples of unreasonable behaviour to include in a divorce petition. This is because it is inevitably inflammatory at the commencement of divorce proceedings, when finances still have to be sorted out, to lengthy description of all the things the other person has done wrong. Indeed, if this step has not been taken, the Court can decline to make a costs order that the Respondent pay the Petitioner’s costs of the divorce petition itself, as it is very much the approved way to see if the content of the petition can be agreed. The Court of Appeal’s decision and now the Supreme Court’s decision are raising the question of whether this is collusion. It is a suggestion it harks back to a time when parties set up an adultery situation to meet the legal requirements with, for example, a husband paying a lady to spend the night in a hotel room with him where they were likely to have just been playing Monopoly so the chambermaid could come in in the morning and find them there, thus providing the appropriate evidence. Those days are gone, but this decision in Mr and Mrs Owens’ case is very reminiscent of that.
Whereas unreasonable behaviour is the grounds for divorce. When another party has committed adultery it is the only ground that enables them to divorce without waiting two years. Even then they can only divorce after 2 years if the Respondent consents. If not, it is the 5-year wait.
There has already been a lot of pressure for there to be a no-fault divorce procedure to petition. This case highlights the need for this.
When a couple have children they are parents “until death do them part”. They might get divorced, but once they have children they remain those children’s parents until their death. It is very important that both parties, and their legal teams, avoid if they can steps that are inflammatory and make it harder as a couple to jointly parent their children both as minor children and as adults. Even when children are adults, there are all sorts of family events which include graduations, weddings, the birth of grandchildren, where what took place during the divorce can make a difference as to whether or not they can both attend.
There are some interesting procedural points that arose in the case of Mr and Mrs Owens.
Mrs Owens issued her divorce petition with the customary light touch. Mr Owens defended it and denied the allegations. Mrs Owens took the usual next step during a much more detailed statement taking examples from her diary of Mr Owens' behaviour. There were 27 examples. The contested hearing was listed for one day. It is correct the parties agreed to a one-day listing but what often happens is that because of the pressure in the Court, listing office cases do not start early and there may be just a few hours to address all the evidence. In this case, the Judge referred to what could be achieved in 1 ½ hours. It was suggested that evidence was limited to the main allegations and 3 were referred to. There was cross-examination on these three points. This is not unusual. It occurs more frequently when the Court are having to decide domestic violence allegations. Many practitioners will when they have been in Court with a list of allegations and have been told by the Judge this must be cut down to the main points. We are all appreciative of the pressure on Court time.
However, what happened in Mrs Owens case is that without the Judge, at the first Hearing, considering evidence on all 27 allegations, the ongoing accumulative effect of Mr Owens' behaviour was not fully addressed. The Judge did refer to the allegations but he did not hear evidence on it. It may have been that had there been sufficient Court time, he had heard evidence from both parties on all of those allegations the continuous “drip drip” effect of it that have been much more apparent. This could have led to a difference outcome with Mrs Owens obtaining her divorce.