Owens: “a wretchedly unhappy marriage” and What is Unreasonable Behaviour?

Vanessa Fox
Partner and Head of
Family Law
hlw Keeble Hawson

Contested divorces are rare. I have undertaken three in my 30-year career on behalf of the Petitioner.

All were successful with the grounds found by the judge to be established after hearing evidence from the parties.

Such cases are very upsetting for all sides, as the dirty linen of many years of unhappy marriage is washed in a public court.

So I considered with interest the decision of the Court of Appeal in Owens v Owens.

Mr and Mrs Owens married in 1978 and separated in February 2015 when she moved out of the family home into a rented property. In May 2015 she submitted a petition to court based on her husband’s behaviour.

She alleged that he had prioritised his work during their marriage (although he was now retired), he had mood swings and was unpleasant to her on social occasions causing her to be embarrassed.

There were other allegations but this was the gist of the petition and there was no doubt that Mrs Owens was in a very unhappy marriage.

The husband was not willing to agree to a divorce on these grounds and contested the case.

Her case came before HH J Tolson, who gave his judgement on 15 January 2016, having heard evidence from both parties. He found that the petition allegations were not sufficiently significant to entitle Mrs Owens to her divorce.

The Court of Appeal’s decision on 24 March 2017 was that it had no choice but to uphold the earlier ruling and refuse the appeal.

The trial judge had gone through an “anodyne” set of allegations with the husband and the wife and decided that they were not bad enough to warrant “behaviour such as the Petitioner cannot reasonably be expected to live with”. He found that they were exaggerated and were part of marriage.

The Court of Appeal could not find a fault with the way in which the law had been applied and it was mentioned that parliament had decreed that it is not a ground for divorce to find yourself in a wretchedly unhappy marriage.

The Court of Appeal had a lot of sympathy with Mrs Owens and hoped that Mr Owens would relent and permit her to divorce him on two years’ separation, rather than waiting five years, until February 2020 – which is essential without his consent.

The appeal judges took time to criticise at length the current “hypocrisy and lack of intellectual honesty” of our current divorce law.

Unless couples are prepared to wait two years and to separate immediately in order to start that period running, they have no choice but to “think up some allegations” for a behaviour petition.

The appeal judges made it clear that they had no criticism of the solicitors dealing with these issues every week and that the “anodyne petition” which is such a feature of a divorce lawyer’s working life was necessary to achieve a divorce in some circumstances.

There is concern among divorce lawyers that the refusal of Mrs Owen’s petition will mean many more specific unpleasant divorce petitions in future to prevent the risk of a contested case being unsuccessful for the Petitioner.

About Vanessa

hlw Keeble Hawson partner, Vanessa Fox, marked 25 years as head of the firm’s family law department in 2016.

Collaboratively trained and a qualified mediator, she has modernised South Yorkshire Resolution since becoming chair in 2013 and is also a member of the Law Society’s Family Law Panel and the Children Panel.

She can be contacted on 0114 290 6232 or atvanessafox@hlwkeeblehawson.co.uk.

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