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Divorce petition thrown out


Many readers will have noticed in the press the case of Hugh and Tini Owens in which Mrs Owens was refused a divorce so needed to take her case to the Court of Appeal whose decision is now awaited.

 

The case has shone a light on the "grounds" for divorce and what must be shown to dissolve a marriage.

 

Strictly there is only one "ground" for divorce in England and Wales - that the marriage has irretrievably broken down. In order to demonstrate the irretrievable breakdown the petitioner must show that one of five "facts" has arisen - adultery by the other spouse, behaviour by the other spouse that the petitioner cannot reasonably be expected to live with (often called "unreasonable behaviour"), desertion, that the couple have lived separately for at least two years and they both agree to divorce or separation of at least five years.

 

Mrs Owens based her petition upon her husband's behaviour and according to press reports must not have made especially serious allegations as these days it is very rare for a petition to be refused. Sometimes there can be a delicate balance between satisfying the judge of the seriousness of the problem and not wanting to say something that is perhaps hurtful to the other spouse. The case may in fact highlight the dilemma in the so-called "amicable divorce" in situations when our law requires allegations of fault to be made. The fault must be enough to justify a finding of irretrievable breakdown and entitlement to divorce whilst solicitors and their clients are urged not to be too aggressive and to take account of the effect of their words on the other party. The judge said that the rows she complained of were "just part of a marriage" and threw out the petition. It is quite possible that Mrs Owens could have made more serious allegations but did not do so and has simply tripped up.

 

Over the years many solicitors will have seen many examples of divorce petitions so poorly written or weak that it has been a surprise when the divorce was granted. This case is a reminder that in the system we have unfortunately a divorce petition based on the other spouses behaviour cannot be simply a general grumble. There is a legal test to be satisfied.

 

Ian Stirzaker

 

Ian is the Senior Partner and Head of Family Law at SME Solicitors. Please contact him or Joanna Gardner for specialist help and advice in all aspects of family law at ian.stirzaker@smesolicitors.co.uk or joanna.gardner@smesolicitors.co.uk

Added: 20 Feb 2017 17:14


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