The case of Tini and Hugh Owens has shown the need for English
divorce law to be updated to reflect modern life. The story hit the
headlines after Mrs Owens separated from Mr Owens in February 2015
after a long marriage and applied to the court for a divorce. She
was told by the Court that, legally, her marriage had not
"irretrievably broken down" and she had to remain
married. The Court stated "it is not a ground for divorce that
you find yourself in a wretchedly unhappy marriage". This is a
sentiment most people would naturally find difficult to
Mr Owens wasn't willing to accept his behaviour caused the
marriage breakdown, therefore the divorce couldn't proceed as a
paper-based exercise as is usual and the allegations made in Mrs
Owens' divorce petition concerning his unreasonable behaviour
had to be fully tested at a trial. This is extremely rare with the
judgment estimating that a tiny 0.015% of petitions proceeded to
trial in the year ending January 2017.
Unfortunately we do not have a "no-fault" divorce
system. We currently rely on a passage of time after separation:
two years if the other person is willing to give their consent to
the divorce and five years if one party needs to proceed without
the other's consent.
Having taken the difficult decision to end a marriage, it's
natural to want to take immediate steps to formalise the position,
so the majority of divorce petitions proceed based on the
"unreasonable behaviour" of one of the parties. Usually
one party makes anodyne accusations against the other and they
agree these in draft form before the petition is sent to the court.
When the responding party is invited by the Court to acknowledge
the petition they confirm they don't intend to defend the
divorce (i.e. it can continue) but they don't agree with
statements made about their behaviour. No serious allegations are
made, no allegations are accepted and the Court grants the decree.
It's essentially a way around the letter of the law.
The idea that the Court and not the parties decide whether a
marriage is at an end feels outdated. Separating following a
marriage is hard enough and it doesn't help to be required by
law to make allegations of bad or unreasonable behaviour against a
husband or wife. Bearing in mind that there are often issues
relating to children and finances to be navigated as well, this
adds an additional burden at an already difficult time. It's
time for Parliament to grasp the nettle and create an option for
no-fault divorce. In the meantime, approaching a solicitor
dedicated to a non-confrontational and co-operative approach can be
crucial in beginning the divorce process in the right way.
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While a request for a divorce may come as a shock, most people come to the realisation that if their spouse considers that the marriage is over then, perhaps after attending marriage counselling, there is no point fighting the inevitable.
There is no question that Mr and Mrs Owens are both unhappy with their current position, and the Court of Appeal judges were equally unhappy with the current legal position. The question is what should be done.
The highly unusual decision in the recent case of Owens v Owens, has served as a reminder of the Respondent's right to defend a Petition for divorce, and the Court's power to reject a Petition based on unreasonable behaviour...
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