Owens v Owens – no fault, no divorce
The recent landmark case of Owens v Owens [2017] decided that a “wretchedly unhappy marriage” was not a ground for divorce. This flies in the face of family law protocol and best practice. Family solicitors have recently been encouraged to draft mild behaviour petitions and family judges have been allowing these to proceed when undefended.
In this case, the parties married in 1978 and had two adult children from the marriage. They separated in February 2015. The wife filed a petition on the ground that the marriage had broken down irretrievably and that the husband had behaved in such a way that she could not reasonably be expected to live with him.
The examples of unreasonable behaviour given in the petition included the husband prioritising work over his home life, the lack of love, attention or affection given by the husband, the husband’s mood swings and the husband’s unpleasant and disparaging comments about the wife both to her and to her family and friends. The parties had also lived separate lives under the safe roof and had not shared a bedroom for many years. The petition was rejected by the husband who indicated that he wished to defend the petition and deny that the marriage had irretrievably broken down. The problem here was that the husband defended the petition. This is highly unusual.
Judge Tolson was unimpressed with the wife’s petition, describing it as “hopeless”, “anodyne” and “scraping the barrel”. He stated that “it lacked beef because there was none” and therefore the petition was rejected. It was held that there is no such thing as “no fault” divorce and that the husband’s behaviour amounted to “minor altercations of a kind to be expected in a marriage”.
The wife appealed the decision, however this appeal was later dismissed. Sir James Munby explained that “Parliament has decreed that it is not a ground for divorce that you find yourself in a wretchedly unhappy marriage, though some people may think it should be”.
The difficulty in a case such as this is finding the balance between providing examples of unreasonable behaviour which do not cause offence to the other party but are strong enough to not risk rejection from the court. However, if the reasons given are not strong enough, the petition can simply be “beefed up”. Sir James Munby accepted in this case that if the husband had not defended the petition, it probably would have gone through.
Lady Justice Hallett agreed with Sir James Munby in this case and held that it is for Parliament to decide whether to amend section 1 of the Matrimonial Causes Act 1973 and to introduce “no fault” divorce on demand. She concluded that it is not for the judges to usurp their function by allowing “no fault” cases to proceed through the courts.
What is interesting in this case is that none of the judges disagreed that the marriage had irretrievably broken down. Lady Justice Hallett said that she hoped that the husband would change his mind and allow the petition to proceed in future. Clearly the key is ensuring the petition will not be defended. We would advocate it is essential that the parties agree in writing between their solicitors that the marriage has broken down, a divorce will not be defended and agree the particulars in the petition before it is sent to court.
If you are unsure whether your examples of unreasonable behaviour are satisfactory, please contact the family law team on 01225 750000.