The recent well-publicised case of Owens v Owens has highlighted the ongoing debate about whether the government should introduce no fault divorce, to replace the current process.
There is one ground for divorce which is that the marriage has broken down irretrievably. To satisfy the court that there has been an irretrievable breakdown, you must show one of the five following facts: adultery; unreasonable behaviour; desertion for at least two years; separation for at least two years (with consent); or separation for at least five years (with or without consent).
“Unreasonable behaviour” is currently the most common fact used in divorce proceedings in the UK. A study from Oxford University has recently found that the number of divorces being granted based on the fact of unreasonable behaviour is increasing. The study states that the reason for this is that most people prefer an immediate divorce without having to wait for two or five years, or to use the fact of adultery which can be difficult to prove if it is not admitted. However, this may change following the recent Owens v Owens case.
This case is a rare example of a defended divorce, where the Court has considered the correct interpretation of unreasonable behaviour. The wife and husband in this case, have been married for 39 years. The wife is 68 years old and the husband is 80 years old. The wife left the family home in February 2015 and they have not lived together since.
In line with the Law Society Family Law Protocol and Resolution principles, the wife’s divorce petition contained mild, non-inflammatory examples of the husband’s unreasonable behaviour.
The husband defended the unreasonable behaviour petition. The Judge dismissed the wife’s divorce petition stating that the allegations were “minor of a kind to be expected in a marriage”.
The wife appealed the decision to the Court of Appeal. The Court of Appeal held that the test for unreasonable behaviour is that the petitioner must demonstrate that a reasonable person would conclude that this particular respondent has behaved in such a way that this particular petitioner cannot reasonably be expected to live with the respondent, taking into account all of the circumstances and the history of the marriage.
The Court of Appeal agreed with the first instance Judge, that the examples of unreasonable behaviour in this case did not satisfy the above test and the wife’s appeal was accordingly dismissed.
The wife was given leave to appeal to the Supreme Court who, although sympathetic to the fact that the law no longer reflects modern day realities, agreed with the decision of the earlier judges and they also dismissed the wife’s appeal.
Mrs Owens is now in a position where she must remain married until February 2020, when she will be able to use the alternative fact of “five years separation”.
The decision has led to concerns from family lawyers that unreasonable behaviour petitions will now be scrutinised more heavily by judges, leading to a necessity for more serious allegations having to be made within the petitions and that, as a result, there may be more defended divorces which will, in turn, increase time at Court. This will also increase the costs of divorce proceedings and, of course, lead to the detriment of relationships between separating partners who may also be parents.
Many bodies such as Resolution and the Law Society are calling for parliament to change the divorce procedure so that there is a new no fault divorce option.
In the meantime, for expert advice on how to divorce using the fact of “unreasonable behaviour”, or any queries regarding divorce, please contact Jane Ingleby.
For more information on the divorce process please see our Divorce and Dissolution blog article.
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