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 if it is not satisfied that the particulars of such behaviour meet the legal criteria.

There is one ground for divorce in England and Wales; the irretrievable breakdown of the marriage. However, this must be evidenced by one of five facts; adultery, unreasonable behaviour, two years' separation without consent, five years' separation with consent, or desertion. To proceed with a divorce on an immediate basis, the Petitioner must establish one of the three fault based facts, i.e. the Respondent's adultery, unreasonable behaviour or desertion. To divorce on a fact of unreasonable behaviour, the Applicant must identify 4-6 examples of such behaviour which satisfies the Court that the Respondent behaved in such an unreasonable manner that the Applicant finds it intolerable to live with them. Such examples often include the most recent and worst incidents.

The case of Owen involved a couple who married in 1978 and have two adult children together. During the marriage they amassed significant wealth and assets including a mushroom growing business turning over approximately £5 million per year. The couple had been living apart under the same roof for some years prior to the Wife pursuing a divorce, which included sleeping in separate bedrooms for a period of 7 years, until the Wife eventually moved out of the matrimonial home and into rented accommodation in February 2015. Mrs Owens, who admits to having an affair in 2012, sought to rely on examples of her husband's unreasonable behaviour to secure a divorce. Such examples included Mr Owen's prioritising his work commitments over his home life and making unpleasant and disparaging remarks about the Wife to family and friends. Mr Owen defended the Wife's request for a divorce on the basis that his behaviour was not unreasonable and that he wished to remain married.

The Judge who first heard the matter last year refused the petition on the basis that the husband's behaviour had not been unreasonable, and the incidents referred to were in fact 'altercations of a kind to be expected in a marriage'. He found the context and seriousness of the allegations to be exaggerated and commented that the husband's attitude was 'old school' as opposed to unreasonable. He further stated that the couple did not need to divorce because they could afford to live separately. Mrs Owens appealed to the Court of Appeal however, on 24.2.17 the decision was upheld on the basis that the Judge at first instance had applied the law correctly and on the evidence before him was entitled to reach the conclusions drawn.

While the option remains for Mrs Owen's to pursue a divorce on the basis of 5 years' separation without the need for her husband's consent later on down the line, this will no doubt be deemed an unsatisfactory resolve to somebody who considers themselves trapped in a loveless and unhappy marriage. Nor would it enable Mrs Owen to remarry in the short term or enable a financial settlement on divorce to be pursued. The decision begs the question as to what the appropriate outcome would be if the couple could not afford to live separately, given that this was a factor in the Court's determination of this case.

The ruling has been referred to as a setback for divorcing couples which highlights the archaic nature of UK family law and the need for reform and modernisation in this area. The judgment may serve to strengthen calls for the Government to introduce a 'no-fault' divorce whereby parties can apply for a divorce jointly without the need to rely on fault based grounds such as unreasonable behaviour to proceed with an immediate divorce. However, until the law is changed, we must work with what we have and the case highlights perhaps most predominantly at this stage the advantages of a carefully crafted divorce petition on expert legal advice in order to avoid delay, increased costs, protracted legal proceedings and ultimately, a successfully defended divorce.

The case highlights the fine line which most family lawyers tread in seeking to draft unreasonable behaviour particulars which persuade the Court that the marriage has broken down yet avoid the potential for unnecessary conflict between the parties. It also confirms that where possible, the best approach remains to attempt to agree such particulars with the opponent before the Petition is lodged. If a Petition is filed with the Court which has not been agreed, the Respondent has the option to take the pragmatic approach of stating in their Acknowledgement of Service to the Petition that while they do not defend the divorce, they do not accept the particulars relied on. This avoids a contested divorce and increased costs, yet reserves the Respondent's position should the Applicant seek to refer to such particulars in other proceedings. This option would have been available to Mr Owen had his intention not been to defend the divorce itself.

While the test for unreasonable behaviour is a subjective one, the Court of Appeal's decision demonstrates the risks involved in submitting particulars which may be deemed too mild or indeed 'flimsy' which totally contradicts what most resolution minded lawyers have come to view as good practice. Had Mrs Owen stated in her particulars that she reserved her right to add further and better particulars should the divorce be contested, this would have enabled her to amend the same by providing further evidence of the facts relied on which may have satisfied the Court that the statutory test of intolerability had been met.

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