After a long marriage Mrs Tini Owens commenced divorce proceedings based on what she viewed as her husband Hugh’s unreasonable behaviour.
The Matrimonial Causes Act 1973 provides that divorce is based on irretrievable breakdown of marriage proven by one of five ‘facts’; these are:
- Unreasonable behaviour
- Two years’ separation with consent
- 5 years’ separation
Behaviour is a subjective concept therefore it is the view of the person seeking the divorce, known as the ‘Petitioner’, which is relevant when deciding what is unreasonable.
The ‘Owens’ case
Mr Owens defended the divorce by denying that allegations. A Judge therefore had to decide whether the behaviour alleged in the divorce petition led to the irretrievable breakdown of the marriage. The Judge agreed with Mr Owens and dismissed the divorce petition.
The allegations in the petition were of the type which get through courts up and down the land on a daily basis. Mrs Owens claimed she had suffered “continued beratement” and constant criticism from her husband, including in front of other people. Such behaviour left her feeling “unloved, isolated and alone”.
At the divorce hearing the Judge commented that the allegations were “exaggerated” and “at best flimsy”, claiming they were “minor altercations of a kind to be expected in a marriage” and “an exercise in scraping the barrel”.
Mrs Owens is now appealing that decision in the Court of Appeal. The decision of the appeal judges will be based on whether they take the view that Mrs Owens herself found her husband’s behaviour to be unreasonable and led to the irretrievable breakdown of the marriage.
It is very unusual for a divorce petition to be defended and even less so for a divorce to be refused. These days family law practitioners advise that divorce is essentially an administrative process. In the vast majority of cases there is little to be gained by attempting to defend a divorce. It is an expensive process and, if one party takes the view the marriage is at end, there is little point in trying to stop the divorce.
The Owens case is unusual in that the husband did not want the marriage to end. In behaviour divorce cases, the respondent usually agrees that the marriage has broken down irretrievably. However, the fact that he or she has to face allegations of their unreasonable behaviour causes further upset at an already difficult time. It is not therefore surprising that many respondents do want the opportunity to defend the allegations made against them.
The current law should be changed so that when a marriage is over, there is no need for blame on either part. Indeed, family lawyers have been campaigning for ‘no fault’ divorce for years.
Mr and Mrs Owens are now locked in a legal battle which will do nothing other than play out the intimacies of their marriage in public setting and cost them both a great deal of money. It is high time that our archaic law on divorce is brought into the 21st century.
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