The Court of Appeal has delivered its much awaited judgment in the case of Owens v Owens, dismissing the appeal of wife, Tini Owens, who was seeking to divorce her husband of 39 years on the grounds of his unreasonable behavior.
In reaching its conclusion, the appeal court focused on a handful of the wife’s particulars of her husband’s unreasonable behaviour including:
- an incident where she felt he had embarrassed her in public after he reprimanded her for not buying the correct gift for their housekeeper;
- an occasion where he caused her embarrassment because he sat in silence throughout an evening meal at their local pub; and
- an incident where she recalled her husband criticising her in front of the housekeeper and chastising her like a child.
The judge in the first instance rejected Mrs Owens’ allegations as being “anodyne, lacking beef, and flimsy”, finding them to be insufficient to evidence the irretrievable breakdown of the marriage. In response to these comments, the appeal focused on the argument that the first instance judge had failed to properly take into account the wife’s subjective characteristics and the cumulative impact of the husband’s behaviour over the course of the marriage.
The appeal was, however, dismissed with the court commenting that the first instance judge had displayed no error of law in his judgment and that he was entitled to reach the conclusion that the irretrievable breakdown of the relationship had not been proved. It is perhaps worth noting that in her judgment, Lady Justice Hallet commented that it was “with no enthusiasm” that she dismissed the appeal and that she “very much regrets that the decision will leave the wife in a very unhappy situation”.
The judgment has unsurprisingly caused waves amongst family practitioners with the chair of Resolution commenting that the judgment “absolutely underlines the urgent need for no-fault divorce” and that “nobody should be compelled to remain in a marriage against their will”. For more information on no-fault divorce, please read our blog here.
A recent report published by the University of Exeter comments that the majority of divorce petitions are now based on ‘fault’ (with such divorces taking as little as 3 months) but there is concern that the petitions do not accurately record who or what caused the breakdown of the marriage. As things currently stand, sensible family practitioners play a balancing act, wording particulars so as to provide enough evidence to persuade the court that the marriage has broken down, but worded carefully so as to not increase conflict unnecessarily. However, in the wake of this decision, there is an increased risk that particulars may be exaggerated to ‘prove’ the breakdown of the marriage, increasing conflict between parties during an already acrimonious time.
It is worth remembering that whilst the majority of divorce petitions are undefended, the Owens case concerns a defended petition. The judge commented that he could not help thinking that “if the husband had not sought to defend the petition, it would have gone through without any challenge from the court”, calling into question whether the judgment has effectively established a higher threshold of unreasonable behaviour for defended petitions as opposed to those that are undefended. Such a situation would be seemingly unsatisfactory and it remains to be seen what impact the judgment will have on how behaviour particulars are drafted in the future.
If you would like further information in relation to anything discussed in this post, or any aspect of family law, contact Vanda James on 01892 506 184 or at email@example.com.