Divorce: Whose fault is it?

The case of Mr and Mrs Owens has recently hit the headlines. In March 2017 Mrs Owens appeal came before the Court of Appeal.  At that stage Mr Owens was 77 years of age and Mrs Owens was 66 years of age.  They had married in January 1978.  They had two adult children and they had been separated since 2015 when Mrs Owens left the marital home.  The parties therefore had a 38 year marriage.

Mrs Owens brought a petition against her husband based upon his unreasonable behaviour. He defended the petition and said that the marriage had not broken down irretrievably as a result of his behaviour.

When the petition was heard by the Court, His Honour Judge Tolson QC found that the marriage had broken down irretrievably but decided that this was not on account of the husband’s unreasonable behaviour and he therefore dismissed the petition.

The wife appealed to the Court of Appeal but her appeal was also dismissed by the Court of Appeal.  Mrs Owens has now been granted permission to appeal to the Supreme Court.

The relevant law for the test for unreasonable behaviour is contained in Section 1 of The Matrimonial Causes Act 1973. The petitioner has to prove that “the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent”.

Further it is the duty of the Court under Section 1(3) of The Matrimonial Causes Act 1973 “to enquire so far as it reasonably can, into the facts alleged by the petitioner and into any facts alleged by the respondent”.

The test therefore for unreasonable behaviour is twofold. It is the subjective test for this particular petitioner but it is also finally and conclusively the objective test of the Court whether the behaviour is considered by the Court to be unreasonable.

Regrettably in the case of Mrs Owens, the Court decided against her. The Court of Appeal also decided against her.

Sadly, therefore Mrs Owens is “trapped in a loveless marriage” and is not able to obtain any redress from the Court.  She will not be able to pursue a divorce based on two years separation as she would require Mr Owens’ consent to this.  This would mean therefore that Mrs Owens would have to wait until  five years separation  had gone by before she can begin her petition.

A recent study headed by Professor Liz Trinder has research that shows from the 550 divorces which were investigated, none had been rejected by the court on substantive grounds. This has been the general practice that has developed over recent years, as the UK does not currently have “no fault divorce”.  The Law Society Family Protocol and The Code of Conduct of Resolution- First for Family Law indicate that the proposed petition should be sent to the respondent for consideration before issue to avoid defended petitions and to reduce acrimony between husband and wife.

The Government statistics for petitions in the year to January 2017 state that of 113,996 petitions, only 760 petitions (0.67%) have been defended. Of that small percentage an even smaller percentage -a “mere handful” -proceeded to a fully contested hearing.

It is considered that most respondents will defend a divorce petition on the basis that they have a feeling of injustice with the allegations, where, in most circumstances,  the respondent does agree that the marriage has broken down irretrievably.

Resolution First for Family Law has long campaigned for there to be “no fault divorce” and it is believed that Resolution have also assisted by Resolution Counsel drafting  the submissions in relation to Mrs Owens appeal.

The situation therefore at the present time, is that it is essential  for the particulars of unreasonable behaviour in the petition,  to be drafted in such a way that they are not considered flimsy by the Court; but also in such a way that when sent to the respondent before issue, the allegations are not of such a nature to  inflame the respondent into defending in any event.  This confirms therefore that the Code of Practice remains the best course to adopt, to ensure that the petition has been viewed by the respondent before the petition is issued.  The respondent can then indicate on the Acknowledgement of Service that the respondent does not accept the truth of the allegations but accepts that the marriage has broken down beyond repair.

Should Mrs Owens lose her appeal before the Supreme Court, it is anticipated that this will give strength to the calls which have been made for the Government to introduce “no fault” divorce.

Until then however, the divorce petition should be carefully prepared following expert legal advice in order to avoid the divorce petition not being accepted by the Court or defended by the respondent.

If you would like any help with regard to divorce including financial issues and issues involving the children please contact Pam Arrowsmith or Jasdeep Nagra on 0121 227 3850.