On 24th March 2017, the Court of Appeal dismissed the appeal of Mrs Owens against a Judge’s decision to refuse to grant her a divorce on the basis that her 39 year marriage had broken down due to Mr Owen’s unreasonable behaviour.
The outcome of this decision appears to be the most significant case on this issue this century. It can be seen as a huge set back to couples who are stuck in a loveless and unhappy marriage.
In this case Mrs Owens had cited 27 allegations of Mr Owens’ unreasonable behaviour in her divorce petition. Mr Owens denied the allegations and defended the divorce, wishing to remain married.
The decision to bring a marriage to an end is never an easy one. It has been said that a marriage breaking down due to unreasonable behaviour is an individual and very subjective decision. Behaviour that is acceptable to one person may not be tolerable to another.
The original Judge hearing this case considered that in light of the current law, the claims of Mrs Owens were examples of “minor altercations of a kind to be expected in a marriage”. As the law currently stands, unhappiness, discontent and disillusionment are not facts which you can rely upon to prove irretrievable breakdown of a marriage.
The outcome of this judgment has the affect that Mrs Owens, at the age of 66, will have no alternative but to remain married until she is 70, and then rely on the fact that she has been separated from Mr Owens for 5 years, before she can divorce without the consent of Mr Owens and without having to rely on unreasonable behaviour allegations.
Most couples, at the point of seeking legal advice, agree that their marriage has broken down and seek to agree a way forward as soon as possible. It should be noted that the case of Mr and Mrs Owens is a more unusual position with one party defending the divorce.
As a result of this judgment there is a risk that those seeking advice on divorce and wishing to petition on grounds of unreasonable behaviour will seek to overstate their spouse’s behaviour that they find intolerable for fear of the Judge rejecting a petition if they did not do so. The outcome of this could mean a reduction in the number of divorces being dealt with in an amicable fashion which could then cause additional stress, additional expense and make the process lengthier for the parties involved.
It is important to seek legal advice regarding the drafting of a divorce petition to ensure that you have sufficient grounds to persuade a judge to grant your divorce. Failure to do so could result in your petition being rejected or your divorce refused. By this time however, the Court fee of £550 will already have been paid and will not be refunded. The Court will charge you again if you seek to amend the wording in your petition. Therefore, it is important to get it right from the offset.
Our experienced family team try to assist couples in reducing conflict. Part of this process is to draft petitions and particulars in respect of unreasonable behaviour that meet the threshold to persuade the Judge that the marriage has broken down without the need for the wording to create any additional conflict In light of this case. Getting this balance right is going to be even more important but also, more complex.
At Wolferstans, we can guide you through this process. Contact us on 01752 663295 and speak to a member of our team.