Divorce: it’s nearly always somebody’s fault!
The recent case of Owens v Owens has highlighted how even if you believe your marriage has irretrievably broken down, unless you can prove one of five facts, the Court may not grant your divorce.
This problem faced Mrs Owens; the petitioner in these proceedings. She issued her divorce petition on the basis of her husband’s unreasonable behaviour and provided 27 allegations in support of this. Mr Owens disputed these allegations and defended the divorce.
Mr Owens’ unreasonable behaviour was the only ‘fact’ available to Mrs Owens in support of her application because the parties had just recently separated, there was no desertion and no adultery committed by the Respondent.
In order to grant a divorce based upon unreasonable behaviour, the Court must find on the balance of probabilities that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with them.
In this case, the Court found that the allegations were ‘anodyne’ and ‘scraping the barrel’ and did not constitute such unreasonable behaviour. They therefore refused Mrs Owens’ application for a divorce. Although she then appealed to the Court of Appeal, this Court also found that whilst they accepted that the marriage was over, they could not grant the divorce based upon that fact and were bound by the law set down by Parliament.
Mr and Mrs Owens therefore remain married until and unless Mrs Owens can rely on another fact in support of her petition.
This case has raised calls, particularly from Resolution, for the law to be changed to allow for a ‘no-fault divorce’.
In the meantime, practitioners will have to continue to carefully draft divorce petitions that satisfy the Court as to the respondent’s unreasonable behaviour, but will also not be rejected by respondents. Though Sir James Munby, President of the Family Division remarked that the petition may well have been granted without any thought of challenge from the Court, had Mr Owens not sought to defend it.