Family Law

Court rejects wife’s appeal over refusal to grant her divorce
30 March, 2017

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

What is mediation?
20 March, 2017

What is mediation and how does it work?

Mediation is actively encouraged by the courts and is a voluntary, non-confrontational process for resolving family disputes. Almost all family disputes can be resolved in mediation including, but not limited to, disputes concerning divorce and separation, financial claims on divorce and issues concerning children.

Mediation usually consists of a number of meetings with one neutral mediator and couples meet together with the mediator to discuss the issues between them. The mediation sessions offer a safe and confidential environment for couples and family members to talk openly, clarify issues and explore options. Any agreement that is reached can be made into a legally binding agreement.

What are the benefits of mediation?

  • Mediation can take place at any stage of the proceedings, although it is often better to begin mediating as early as possible
  • Flexible outcomes that are tailored to a couple’s particular needs
  • Mediation is safe and confidential from the court process, encouraging discussions and negotiations that would not otherwise be possible
  • The time and timing of mediation sessions are within a couple’s control, unlike the strict court timetable that would otherwise be imposed
  • Mediation avoids the stress and threat of court proceedings
  • Mediation is considerably cheaper than any legal process

Is mediation suitable for everyone?

Mediation is not suitable for every couple. In order for mediation to be successful, both parties must be prepared to resolve issues by agreement and outside of the court process. This will require a degree of commitment and willingness to compromise.

Mediation will usually take place with the couple and mediators in the same room. However, if this is not possible (e.g. if communication has broken down to such an extent or where there is a power imbalance), the mediator can move between different rooms to ensure that the couple have little or no contact.

If you would like further information in relation to anything discusses in this post, or any aspect of family law, contact Katy-Louise Allen on 01892 506 305 or at

Government rejects plans to reform divorce law
1 March, 2017

Current divorce law

Under current law, the sole ground for divorce is the irretrievable breakdown of a marriage. In order to establish that the marriage has irretrievably broken down, the petitioner must place reliance on one of five facts:

  • That their spouse has committed adultery;
  • That their spouse has behaved in such a way that they cannot reasonably be expected to live with them;
  • That they have been abandoned;
  • That they have been separated for two years and they agree that they should divorce; or
  • That they have been separated for five years.

The argument in favour of the two and five year timeframes is that it protects against couples from divorcing too quickly. However, the overwhelming view amongst family practitioners is that the current law encourages people to file fault-based divorce petitions, rather than separating and waiting for two years to file a petition to which both parties mutually consent.

The result is that couples are being forced to apportion blame for the breakdown of their marriage, by citing particulars of unreasonable behaviour or incidents of adultery. This often increases tension and animosity during an already difficult and emotional time.


In an age where mediation and non-conflict based resolution is actively encouraged by the courts, practitioners have been exhaustively calling for the government to review current divorce legislation.

However, the government has recently announced that it has no current plans to review the fault-based divorce system, leaving many to wonder when, if ever, this will become a government priority.

The government’s announcement comes in the wake of the high profile case of Tini Owens, who asked the Court of Appeal to overturn a family court ruling that she could not divorce her husband, despite feeling “locked in” to her marriage. Those in favour of reform argue that this case is a clear demonstration of why a no-fault based divorce system is in desperate need of being introduced. The outcome of the hearing is awaited.


Are public divorce hearings the way forward?
2 February, 2017

The current principle in family disputes is that hearings are held in private. This means that unless cases are appealed in the Court of Appeal, details of hearings and pay outs are not made available to the media. However, under radical new reforms proposed by Sir James Munby, the President of the Family Division of the High Court, family hearings could soon be taking place under the glare of the public eye.

Munby has been calling for greater transparency in family proceedings for many years, believing that there is a need for greater openness to improve people’s understanding and confidence in the court system. His proposals are formed of two strands. Firstly, to launch a trial in which some hearings will be held in public and secondly, to make certain documents available to the media. In formulating his proposal, Munby has worked closely with judges in Australia, where family proceedings have been held in public for the last 30 years.

There is however widespread opposition to Munby’s proposals, with critics arguing that public hearings could stop vulnerable women from bringing and taking part in family proceedings. There is particular concern in relation to the safeguarding of children’s interests with organisations such as Resolution arguing that such reforms could result in lasting harm to children, who may end up with details of their private family life blazoned across the press, never to be retrieved.

If public proceedings are deemed to be the way forward, families will at least have the certainty to make informed decisions as to whether they wish to proceed in privacy and confidence with alternative dispute resolution options, or whether they wish to battle it out in an open court. On the other hand, only time will tell what, if any, impact public hearings will have on both children and adults.

Further guidance on Munby’s proposals is expected to be released early this year.

If you would like further information in relation to anything discussed in this post, or any aspect of family law, contact Claire Tollefson on 01892 506191 or at


What rights and obligations do step-parents have on divorce?
26 January, 2017

Step-parents are often heavily involved in their step-children’s upbringings and want that to continue, even if their relationship with the children’s biological parent breaks down.

In reality, the rights and responsibilities that they have will depend on whether or not they have acquired ‘parental responsibility’. Parental responsibility is “all of the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property.” What does this mean?  Those with parental responsibility can be involved in important decisions in relation to the child, including those relating to education, medical treatment and religion.

But step-parents do not automatically acquire parental responsibility. They can only acquire it either with the consent of all those who do have parental responsibility, or by order of the court.


Following the breakdown of a relationship, it is always preferable to try to reach an amicable agreement regarding the children’s on-going care and contact arrangements, without recourse to the courts.

However, step-parents who are unable to reach agreement with their ex-partners about the level of involvement they continue to have in their step-children’s lives may make an application to the court for a child arrangements order regulating with whom the children are to live, spend time or otherwise have contact with.

When determining the application, the court’s paramount consideration will be the children’s welfare.

Financial provision

The Child Maintenance Service (formally the Child Support Agency) cannot enforce maintenance payments from step-parents. Instead, an application can be made to the court as part of the divorce and financial remedy proceedings.  The courts have the power to order child maintenance payments from step-parents if the children were treated as ‘children of the family.’

If you have any questions in relation to anything discussed in this post, or about any aspect of family law, contact Claire Tollefson on 01892 506191 or at


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