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Stuck in a marriage she can't get out of?


There has been a great deal of press comment about the judgment of 25 July 2018 concerning the case of Mr and Mrs Owens. Mrs Owens was refused a divorce based on allegations about her husband’s behaviour. The interpretation of “unreasonable behaviour” in divorce has always held a particular interest for me since I was an articled clerk sat behind counsel on behalf of Mrs Buffery in the Court of Appeal in 1988.

Question : What effect will this really have upon day to day divorce law?

Answer: Very little if any.

Mrs Owens filed a relatively weak set of allegations in her divorce petition and then her lawyers appear not to have pursued them all when the case was first heard nor did they call any independent witnesses in support. The judge said that her case “lacked beef” although that is not necessarily a criticism when lawyers are encouraged not to inflame difficult situations. The Supreme Court had misgivings about how the case had been conducted in its earlier stages

In the Supreme Court Lord Wilson quoted from the case of “Ash” in 1972 when the judge said:-

“…a violent petitioner can reasonably be expected to live with a violent respondent; a petitioner who is addicted to drink can reasonably be expected to live with a respondent similarly addicted; … and if each is equally bad, at any rate in similar respects, each can reasonably be expected to live with the other.”

…and then described that view as “almost comical”. Things have certainly changed since then. The simple fact is that the tests set out in the Matrimonial Causes Act 1973 are now 45 years old and not really in line with current society and the expectations of many people.  The courts have already gone as far as they reasonably can to encourage divorcing clients to reduce conflict and to water down allegations of behaviour but Mrs Owens’ petition was a step too far. It is a simple fact that where there is a legal test to be satisfied some allegations will succeed and some may fail. Mrs Owens was on the wrong side of the fence and seems to be just about the only known case of a successfully defended behaviour divorce petition in the last 30 or more years.

Given the number of divorces that have taken place over that time period one single successfully defended case will not turn the world on its head.  Most people will still rightly reduce aggression and conflict in their petitions, most will continue to be undefended and most will divorce exactly as they always have.

That is not to say that the law in this area is perfect.  It is not.  It could be far better.  There have been attempts in the past – and in 1996 the Major government introduced a change that many family lawyers felt would have been far better than the current situation but that law was never brought into effect.  Maybe the government will look at this area again at some point but it seems to be a bit distracted by other things at the moment.

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: 08 Aug 2018 10:36


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