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What now for Divorce?

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Thoughts on the case of Owens -v- Owens. 

Whilst the Judges of the Supreme Court expressed sympathy for Mrs Owens and made no criticism of her solicitor’s drafting of her original divorce petition, the fact remains that they have refused her appeal.  The outcome is that Mrs Owens must remain married to Mr Owens despite issuing a petition in 2015.

If you are in the position of wishing to obtain a divorce immediately upon the breakdown of your marriage how does this Judgement affect your ability to do so?

You can read the judgment here: https://www.supremecourt.uk/cases/docs/uksc-2017-0077-judgment.pdf

The practical implications of the Owens judgement of course remain to be seen.  Will Respondents to divorce petitions more readily try to defend those petitions?  Will Judges upon receiving undefended petitions reject them on the basis that that the fact for divorce is not established by the petition even though both parties are indicating a wish to be divorced?

What now for divorce?

Without any new law in prospect (Parliament being occupied mostly by Brexit) we are left with a divorce law that is 45 years old.  There are only 2 facts for divorce which can prove immediately that the marriage has irretrievably broken down:

Fact (a)                 that the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent;

or

Fact (b)                 that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent;

For almost as long as anyone can remember the fact set out at (b) has is known as “unreasonable behaviour” and this has an understanding amongst the public.  It is this short hand name for this fact for divorce which the Supreme Court sets out causes a misunderstanding about what needs to be proved for a divorce under fact (b) to be successful.

When considering a petition based on fact (b) the Supreme Court now says that the following must be considered:

1.            In reference to the allegations made by the Petitioner in the petition, what the Respondent has done or did not do

2.            What is the effect of that behaviour on the Petitioner taking into account his or her personality, disposition and all the circumstances of the behaviour

3.            If, as a result of the Respondent’s behaviour and in light of the effect on the Petitioner, it would be reasonable to expect the Petitioner to continue to live with the Respondent.

It is the expectation as to whether or not the Petitioner should continue to live with the Respondent that must be unreasonable and not the behaviour of the Respondent.

Mrs Owen’s case highlights that there is no short cut to divorce.  There is no way to obtain a divorce immediately upon the breakdown of the marriage apart from preparing a petition based on one of these two Facts. 

If you are thinking about issuing a petition based on Fact (b) what is our advice:

1.            Take legal advice about the options open to you.

2.            Be absolutely certain that your divorce petition is going to meet the above test

3.            Use a solicitor to draft the divorce petition. Getting it wrong at this stage could mean that the Petition will fail.

What if you think that your spouse is going to submit a divorce petition based on Fact (b)?  In our opinion defending such a petition is only likely to make it more difficult to reach agreement in other areas of dispute such as arrangements for children and resolution of finances.

In the end, although Mr and Mrs Owens remain married they are living separately.  There is no reconciliation of their relationship. There can be little doubt as to the bitterness and bad feeling which a defended divorce petition is likely to  cause.  As members of Resolution we encourage clients to  try to avoid making a difficult situation worse and to engage in amicable discussions to resolve the practical implications of the relationship breakdown. Doing so is to keep costs manageable for both parties and to meet the best interests of any children by not aggravating the situation further.

To make a free initial appointment to discuss your case you can contact any member of John Hodge Solicitors family law team.

Contact our experts for further advice

DavidStarkey, StewartCastle