Alison Dukes, a family solicitor at AMD Solicitors reviews the Court of Appeal case of Owens v Owens.
The 2017 Court of Appeal case of Owens v Owens has highlighted the difficulties that can arise in a fault based divorce system.
In order to obtain a divorce a Petitioner has to prove that their marriage has irretrievably broken down by reference to one of five statutory factors. These are adultery, unreasonable behaviour, 2 years’ desertion, 2 years’ separation with the other spouse’s consent and 5 years’ separation, in which case consent is not necessary.
Mr Owens was born in 1938 and Mrs Owens in 1950. They married in 1978 and separated in February 2015. The wife filed a petition three months later alleging that her husband had behaved in such a way that she could not reasonably be expected to live with him. She referred, amongst other things, to the husband having prioritised work over family, to having failed to provide her with love, attention and affection, to his mood swings and to his critical and undermining manner when speaking to her and about her.
The husband indicated an intention to defend the divorce and the wife amended her petition to provide 27 specific examples of some of the behaviour detailed in her petition.
At the hearing of the divorce in January 2016 the wife’s petition was dismissed and she then appealed to the Court of Appeal.
It was argued on her behalf that the cumulative effect of the husband’s behaviour had worn her down, that she was unhappy and had been embarrassed and that she felt she could no longer live with the husband. By contrast, the husband viewed the wife’s allegations as “the stuff of every day married life”. The wife’s appeal was dismissed.
Unless the husband will now consent to a divorce based on 2 years’ separation the wife is likely to have to remain married until she can issue proceedings again in February 2020. The result is that she will be unable to seek a resolution of all financial matters between her and her husband until that point, unless agreement can be reached in the interim.
In my experience it is very rare for a petition to be defended, not least because of the cost of doing so and the publicity that may follow. Lady Justice Hallett, one of the Appeal Judges, said that she had reached her decision “with no enthusiasm whatsoever” while adding that it is a matter for Parliament to amend the law and to introduce “no fault” divorce, a step that Parliament has so far shown no signs of having the stomach for.
For advice on divorce and other family issues Alison can be contacted by email at firstname.lastname@example.org or by calling 0117 9621460 to speak to Alison or one of AMD’s team of specialist family solicitors based at our office at 100 Henleaze Road, Henleaze, Bristol BS9 4JZ