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Family Section

No divorce for Owens and Owens

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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 [2017] 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.  

Owens v 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 particulars cited were the sum total of behaviour.  There was no consistent course of conduct by the husband, and they were not examples of behaviour that was widespread. They were the only incidents.
  • The particulars were flimsy, anodyne and lacking beef.
  • Mrs Owens’ account was exaggerated.
  • The instances cited were merely examples of events in a marriage that scarcely attract criticism of one party over the other.
  • Mrs Owens had been having an affair prior to the separation, and some of the husband’s behaviour was a justifiable reaction to that.
  • Generally, whilst it was accepted that the marriage was, by now, wretchedly unhappy, that in itself is not a ground for divorce, and one could not place Mr Owens’ behaviour as the cause for the breakdown of this marriage. 

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.

What can we learn?  

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:

  1. Is there any likelihood the petition will be defended? Usually your client can tell you this. 
  2. If your client believes the petition will go through unchallenged, proceed in the usual way, by following the Law Society’s Family Law Protocol, including only brief details sufficient to satisfy the court.  Unless your particulars are very weak, the great majority of cases will pass through ’special procedure ‘without attracting attention.
  3. If it seems the petition might be defended, there are options.  Is there another fact that could be pleaded? Could the other party petition by consent? (Beware of losing control to a petitioner who might then fail to prosecute the proceedings)
  4. If your petition might be defended, you need to really discuss the history of the marriage with your client. With the Owens case in mind, you will have little choice but to make sure everything is mentioned. You should be able to expand on it later in the course of defended proceedings, but the main points should be there. Include comment as to the effect of the behaviour on the petitioner. 
  5. Warn your client. If a defence of your client’s petition, drafted as best as you can with the information available, might be successful, make sure they know. If the behaviour simply is not there, you can do no more than ensure that it is not a complete shock to your client if the petition is dismissed.  In most cases it would still be worth trying, given that when it comes to it, the majority of respondents will not go as far as a contested hearing.

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.

One last point

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.

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