A rare case of defended divorce
Owens is a reminder of the unnecessary turmoil caused by fault-based divorce, writes Paul Hunt
At the time of writing, we are still awaiting a Court of Appeal ruling on a wife’s attempts to have the court grant her a decree nisi, after a lower court rejected a divorce petition which appears to have been based upon ‘unreasonable behaviour’.
This type of defended divorce case is extremely unusual in this day and age, particularly since the removal of legal aid for this type of work. While I remember being encouraged to include detailed allegations of unreasonable behaviour in a divorce petition when I started out doing this work in the eighties, even then defended cases were fairly infrequent.
Over the years the particulars of unreasonable behaviour have shrunk to the extent that one normally only expects to see half a dozen bullet points and a couple of dates; that will suffice if the petition is undefended.
There has been a growing acceptance that a divorce petition, on whatever grounds it is based, is a means to an end, and that there will come a time when it becomes merely an administrative process and no-fault divorces will instead be the order of the day.
Incidentally, this particular type of divorce was nearly introduced in the nineties, but the then government lost its nerve and did not seek to implement the relevant parts of the Family Law Act 1996, which were subsequently repealed.
Since then, there has been a growing culture which leans towards softening the allegations contained in divorce proceedings and avoiding unnecessary offence, while still providing sufficient evidence to satisfy the court.
In turn, divorce petitions are usually allowed to proceed by respondents even if they are personally unhappy about the allegations, as they realise there is little point in disputing who is responsible for the breakdown of the marriage if it is clear that the relationship is at an end.
The case of Owens v Owens, however, is a salutary reminder that although attitudes may have changed, the basic structure of divorce law is much as it has been since the Matrimonial Causes Act 1973 came into operation. Where there are fault-based grounds, these still have to be proven and may still be resisted by the other party, in which case a petition that is set out in bland terms may fail.
Consequently, the court still has to hear evidence to decide whether the allegations made are proven, and if so, whether they amount to behaviour that is sufficiently unreasonable for the purpose of the statute.
As Mr and Mrs Owens have not yet been separated for five years or more, Mrs Owens does not have the option to divorce her husband without his consent, and may have to wait a further few years before she is able to end the marriage of her own free will.
Presumably by coincidence, a spokesman in the House of Lords recently indicated that there are no current plans to change the existing divorce law. The 1973 regime will therefore continue indefinitely – as will the unnecessary emotional turmoil of couples such as Mr and Mrs Owens.
Paul Hunt is a senior associate at Kirwans Solicitors