You wouldn’t think, in 2017, that a couple would be forced to remain married, long after the marriage was ‘dead in the water’. It certainly appeared that those who wanted a divorce, got a divorce.
Then came the recent case of Owens v Owens  EWCA Civ 182 where a husband, Hugh Owens, defended a behaviour petition. Divorce legislation has not moved with the times, and the judiciary found themselves constrained by the legislation. This article is not about the rights and wrongs of the law as it stands, but rather about the issues facing practitioners, that are not new, but have been thrown into focus by Owens.
How many of us read the particulars pleaded by Tini Owens, recognising them as similar to many divorce petitions that we have seen go through unchallenged? Mr Owens, according to the original petition, prioritised work over family; suffered from mood swings; did not provide love, attention and affection to the petitioner (in latter years); on occasion spoke to, and about, his wife in an unpleasant or critical way. This was all such that the parties led separate lives, and, in February 2015, Mrs Owens moved out.
Mr Owens successfully defended the divorce. The obvious question that was in my mind, as I read the case, was: ‘What could we do differently?’
We should not lose sight of the fact that Sir James Munby said, in his judgment, that: ’I cannot help thinking that, if the husband had not sought to defend, the petition would have gone through under the special procedure without any thought of challenge from the court’.
The duty of the court to enquire into the facts presented in a petition is limited, and, unless you’re unlucky, in an undefended special procedure case, as Munby P called it, only the weakest and most poorly drafted particulars are likely to attract a judge to the possibility of lack of grounds.
Back to the Owens, and, in a nutshell, the circuit judge, upheld by the Court of Appeal, found, even after the particulars in the petition were expanded upon, that:
The Court of Appeal was satisfied that the circuit judge had done all the right things. He had considered the subjective nature and effect of the behaviour, and he had then applied the objective test of whether Mrs Owens could reasonably be expected to live with Mr Owens. He concluded: ’I find no behaviour such that the wife cannot reasonably be expected to live with the husband. The fact that she does not live with the husband has other causes‘. The petition was dismissed, and the Court of Appeal upheld this.
The reality is that Mr Owens’ behaviour was just not ‘unreasonable’ enough, even though it is not the behaviour itself that needs to be unreasonable. No matter who had acted for Mrs Owens, the behaviour by Mr Owens to found a divorce, if defended, simply did not exist. Mr Owens himself referred to his wife making a collection of molehills into mountains, because she had aspirations outside the marriage. This seems to sum up the court’s view too.
In a similar case there may be nothing we, as practitioners, can do to establish so-called unreasonable behaviour, if defended, as a fact for divorce. However, the following could be considered:
Defended petitions remain rare. Sir Munby commented that in the year to January 2017 only 0.67 per cent of petitions actually resulted in answers being filed. Even less proceeded to a final contested hearing. The key to how to proceed lies with establishing the likely prospect of your petition being defended.
If your client cannot obtain a divorce now, then we matrimonial practitioners are flung way outside most of our comfort zones. How do we resolve the issues of financial provision, until we can proceed under the Matrimonial Causes Act 1973? The answer lies in the more limited provisions of the Married Women’s Property Act 1882, Matrimonial Proceedings & Property Act 1970, Trusts of Land & Appointment of Trustees Act 1996, and where there are children, possibly Schedule 1 of the Children Act 1989, and the Child Maintenance Service. If it is your client who needs financial provision but is resisting a petition, this might be worth pointing out.