11 November 2017
Calling time on the blame game
Tini Owens, who had her petition for divorce rejected by the courts twice, is set to take her fight to the Supreme Court. Mrs Owens says her marriage of over 40 years has irretrievably broken down; however her husband disagrees, believing they should remain together.
In 2016, the Family Court refused to grant Mrs Owens a divorce based on her husband’s unreasonable behaviour, because she had not set out enough reasons to justify a divorce on that basis and her allegations, according to the judge, were "of the kind to be expected in marriage”.
Mrs Owens then went to the Court of Appeal to try to overturn the decision but this was also refused. The court held that the judge had correctly applied the law and was entitled to reach the conclusions that he did. Mr Justice Munby went on to speak out against the current laws which force unhappy spouses seeking a divorce to prove that their husband or wife has behaved unreasonably, whereas in the majority of cases divorces proceed by consent, without any scrutiny by the courts.
Currently, the definition of unreasonable behaviour for the purposes of divorce is that your spouse must have behaved in such a way that the other cannot reasonably be expected to live with them. However, the examples of unreasonable behaviour made by Mrs Owens were described by the judge as “flimsy at best”.
Mrs Owens has recently been given the opportunity to take her case to the Supreme Court. She is supported by Resolution - an organisation of family lawyers, including those at B P Collins, who are committed to non-confrontational divorce, separation and other family matters. They will seek to be joined as a party to the proceedings as a way of influencing a change in the divorce laws, which they argue are out of date and need to “support wider societal views on no fault divorce”.
If you’re thinking about divorce or separation
If you’re thinking about splitting up with your spouse, the marriage needs to have broken down irretrievably. This can be based on adultery, unreasonable behaviour or desertion for two years.
The final two ways are based on how long you’ve lived apart. In England and Wales, it is possible to divorce on the basis that you and your spouse have been living apart for at least two years. However, both spouses must agree to the divorce. If consent is not provided, and adultery or unreasonable behaviour is not involved, each spouse must live apart for at least five years. This is Tini Owens’ current situation and why she will need to wait for a few more years before she could petition for a divorce on that basis.
Time for change?
Mrs Owens has already incurred substantial legal costs and has also had to pay for her husband's costs, because she has been unsuccessful so far. In the Supreme Court, those acting for Mrs Owens will argue that the law does not require demonstrably unreasonable behaviour, but simply behaviour which is such that the petitioner cannot reasonably be expected to live with the respondent.
Perhaps the Supreme Court hearing will be an incentive for a change in the law for Mrs Owens and for the many people who find themselves in the same situation. In the meantime, it is important to take specialist legal advice, particularly when petitioning on the grounds of unreasonable behaviour as there is a risk that the petition may be defended.
If you’d like to speak to B P Collins about divorce, separation or any other family matter, please contact Sue Andrews, partner on 01753 889995 or email email@example.com