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.
Five statutory facts
The law in England and Wales requires a marriage to have
irretrievably broken down and one of five statutory facts to be
proved. The third, fourth and fifth factors require spouses to have
been separated for between two and five years, so the majority of
divorce petitions are presented on one of the first two grounds:
adultery or 'unreasonable behaviour'. This is not
only because people want to move on with their lives, but also
because a financial claim cannot be progressed (other than on a
voluntary basis) except within divorce proceedings. Unless
there is a new relationship, a divorce petition will be presented
on the basis of 'unreasonable behaviour'.
The statutory test is "that the respondent has behaved in
such a way that the petitioner cannot reasonably be expected to
live with the respondent". The wording of the statute suggests
an objective test, but in considering what is reasonable, the court
will have regard to the history of the marriage and to the spouses
before it, so the test becomes rather more subjective.
To lessen acrimony, the practice among family lawyers is to
submit a divorce petition to the other side for approval before it
is issued. Any disputed allegations can then be removed or watered
down so long as the grounds that remain are sufficient to satisfy a
judge to grant a divorce. As a result many divorces will be
granted on what on the face of a divorce petition would seem to be
very trivial reasons.
Owens v Owens
It is extremely rare in England for any divorce to be defended,
but in early 2017 the defended divorce of Tini and Hugh Owens
reached the Court of Appeal.
Hugh Owens did not want to be divorced from his wife even though
she had had an affair in 2012 and had moved out of the family home.
He said that he had forgiven her. He defended her divorce
petition and the case went to a hearing in which they both gave
evidence in the witness box. The judge was unimpressed by the
wife's evidence describing it as "hopeless",
"anodyne", and "scraping the barrel". He said
it "lacked beef because there was none".
The judge would not grant Tini Owens her divorce, although if Mr
Owens had not defended the divorce a judge would undoubtedly have
allowed the petition to go through. Tini Owens was left with two
options: either wait another few years until they had been
separated for five years or appeal to the Court of Appeal. She
chose to appeal.
All three of the appeal judges conceded that on any view the
marriage was over, but they had to apply the law. They had to deny
Tini Owens her divorce which they did with regret acknowledging
that it would leave her in a very unhappy situation. They
went so far as to urge Mr Owens to grant his wife the divorce and
called for a change in the law which would require a change in
legislation to replace the Matrimonial Causes Act 1973.
No fault divorce?
So where does that leave us today? The likelihood is that the we
will continue to issue 'unreasonable behaviour' divorce
petitions based on compromise statements or 'fudges' to
reduce conflict, although some family lawyers are worried that
judges may now not allow these divorce petitions to go through.
Family lawyers have been calling for many years for no fault
divorce legislation which is the law many countries. The Family Law
Act 1996 was to introduce no fault divorce in this country, but the
relevant part of the Act never received Royal assent, in no small
part due to political fears that it would undermine marriage.
Marriage is a matter of choice and there is no test that
has to be passed, so why should the ending of a marriage have to
pass a judicial test.
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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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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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