You Must Remain Married judge tells wife

The sad conclusion of the Owens divorce case has far-reaching repercussions for couples wanting to split

This recent decision upheld in the Court of Appeal is disappointing. After almost 40 years of marriage, Tini Owns filed for divorce from her husband Hugh who opposed the split. Her petition for “unreasonable behaviour” cited “constant beratement” by her husband following her affair in 2012, and Mrs Owens told the court she felt “unloved, isolated and alone”.

After hearing testimony from both sides, the three judges on the Court of Appeal determined his behaviour did not amount to the legal definition of “unreasonable” and refused the petition, telling Mrs Owens she could file again for a divorce after living apart for five years.

The case has once again raised the question of why the UK legal system does not have a “no fault divorce” option, for which a change in legislation would be needed. This is one of those cases where I suspect the judges wanted to make the right decision and grant the divorce, but the Law as decreed by Parliament back in 1973 did not allow it.

There is in Family Law a campaign, supported by Vincents Solicitors, for the changes to be made to allow for “no fault” divorce which, it is argued, would not only make allowances for couples that fall out of love and drift apart, but would also cost them and the court system a lot less time and money.
At present anyone wishing to divorce has to use one of the following:
• Adultery
• Unreasonable behaviour
• Desertion
• You have lived apart for more than two years and both agree to the divorce
• You have lived apart for at least five years, even if your husband or wife disagrees

Adultery and Unreasonable behaviour are known as “fault based petitions” which allow one to petition the court straight away.

Mrs Owens sought to rely on Unreasonable Behaviour. However in the petition, references to the husband’s “unreasonable” behaviour had been minimized, watered down so as not to further inflame an already difficult situation. She would have been encouraged to do so by her solicitors in accordance with the family law protocol. I quote: “Where the divorce proceedings are issued on the basis of unreasonable behaviour, petitioners should be encouraged only to include brief particulars sufficient to satisfy the court.”

Maybe Mrs Owens descriptions were too brief or to flimsy. The concern expressed by most lawyers is that this decision could see petitioners now citing reams of examples or exaggerating to make their case. It could even lead to a return to the bad old days where people outside the marriage were named as co-respondents in adultery petitions, for example.

While this may seem like a mere paper exercise, the reality is that these beefed up documents would likely lead to the Respondent becoming enraged and could embroil the case in unpleasant details, drawn-out denials and counter claims. The inevitable consequence is the polarisation of parties who can no longer discuss anything sensibly, be it issues around their children or finances.

This is not only upsetting for all involved but the escalation can lead to mounting costs and use of court time, with the system getting clogged up with unnecessary defended petitions. It is feared that the Court of Appeal decision could seriously impact the approach taken by anyone going through marital breakdown in the future.

Most divorce specialists would agree the ideal scenario is a calm and sensible negotiation, with some form of dialogue. We try to help find ways to take the animosity out of the divorce, for the benefit of both parties, their families and children. Called Collaborative Law, this lawyer-led mediation allows for both parties to speak face-to-face to work out some of the most pressing concerns surrounding bills and childcare, and discuss the longer term arrangements. It also enables the parties to come to some sort of agreement on the petition which, in the face of this recent ruling, will become more important than ever before.