You can’t be forced into marriage but can you be forced to stay in marriage when you are desperately unhappy?

30th July 2018

The Supreme Court has dismissed Mrs Owens’ appeal in the much reported case of Owens v Owens. This means that Mrs Owens must remain in a loveless marriage until 2020, at which point she can obtain a divorce based on 5 years separation which after that length of time, will not require Mr Owens’ consent.

This case concerns the technical interpretation of s1(2)(b) of the Matrimonial Causes Act 1973 which allows a spouse to obtain a divorce on the basis that the other party ‘has behaved in such a way that the petitioner cannot reasonably be expected to live with’ the respondent. Over the years, this has colloquially been called an ‘unreasonable behavior’ petition and is a very common way of petitioning for divorce. It’s usually just a straightforward paperwork exercise taking a few months.

As reported in The Times recently, research by Oxford University has revealed that the proportion of divorces granted to wives because of unreasonable behaviour has risen from 17% in 1971 to 51% in 2016.  The rise for husbands was even steeper in the same period, up from 2% to 36%.

Traditionally, when drafting divorce petitions based on unreasonable behaviour, many practitioners, in line with the Law Society’s Family Law Protocol, endeavor to make the examples of unreasonable behaviour as non-acrimonious and anodyne as possible. This is because most family lawyers are members of Resolution and are therefore conscious of their duty to preserve the dignity of the family and not to unnecessarily rip the Respondent to shreds!  Nasty allegations can only inflame the parties’ relationship often to the detriment of any children involved. As a result, the widespread practice of preparing bland and inoffensive unreasonable behaviour particulars had become the industry norm and for good reason.

It was, therefore, with much horror that the anodyne nature of the particulars in Mrs Owens’ petition was called into question. Following Mr Owens’ indication that he wished to defend the divorce, Mrs Owens was granted permission to amend her particulars in order to explain in more detail what she had to endure. In doing so, Mrs Owens gave 27 examples of instances where Mr Owens had been moody and argumentative and had disparaged her in front of others. The court however felt that objectively, Mrs Owens was “scraping the barrel” and therefore at first instance, the judge rejected Mrs Owens’ petition referring to it as hopeless and described the allegations as ‘at best flimsy’, ‘significantly exaggerated’ and ‘minor altercations of a kind to be expected in a marriage’. The test to be applied according to the court was whether a right-thinking person, looking at that particular husband and wife (or civil partners), would ask whether one could reasonably be expected to live with the other taking into account all circumstances of the case and the respective characters and personalities of the two parties concerned.

Mrs Owens strongly disagreed with the decision of the court and appealed but this was sadly dismissed because the Appeal court felt the judge had given due consideration to the impact of Mr Owens’ behaviour on Mrs Owens and had taken the correct considerations into account (including the cumulative impact of the allegations) and had applied the law correctly.

Still dissatisfied, Mrs Owens further appealed to the Supreme Court but again without success. On dismissing her appeal, Lord Wilson noted that there was no denying that Mrs Owens’ appeal generated uneasy feelings and Lady Hale conceded that she has found this “a very troubling case” and no doubt because it means Mrs Owens has to remain married to Mr Owens even though it was widely acknowledged that the marriage has broken down. The Supreme Court has urged parliament to reform its outdated, divorce laws but until then we are likely to see an an upturn in acrimony as petitioners try to create cast-iron unreasonable behaviour particulars which will pass the scrutiny of the court if the divorce is defended. Sadly, more acrimony leads to more litigation and worse outcomes for families and children which does not seem reasonable, whichever way you look at it.

For further information, please contact a member of our family team.

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