In order to secure a Decree of divorce, the party issuing the Petition (“the Petitioner”) must satisfy the Court that the marriage has irretrievably broken down. To do so, the Petition must be based on one of five facts which are defined in legislation brought into effect 45 years ago.
The fact on which Mrs Owens sought to rely was that Mr Owens has behaved in such a way that she could not reasonably be expected to live with him. This is commonly referred to as “unreasonable behaviour”, although that wording does not appear in Statute.
The legal world today is very different to how it was 45 years ago and for many years, it has been accepted that allegations of behaviour at the very start of divorce proceedings are only likely to inflame the relationship between the parties which, particularly when there are children involved, are unlikely to assist them in achieving an amicable resolution in terms of a financial settlement or the arrangements for the children. As a consequence, lawyers have been encouraged by the Family Law Protocol and supported by the Law Society and Resolution to adopt a non-confrontational approach and include “brief details [of the Respondent’s behaviour] in the statement of case, sufficient to satisfy the Court that the marriage has irretrievably broken down”.
In this particular case, Mr Owens was of the opinion that the marriage had not irretrievably broken down, albeit that he did not deny having behaved in the way alleged by Mrs Owens. The Courts determined that the behaviour alleged was not such that Mrs Owens could not reasonably be expected to live with Mr Owens.
Backed by campaigners for divorce law reform, Mrs Owens pursued an appeal of the Judges’ decision not to allow her Petition to proceed, thereby enabling her to bring an end to her unhappy marriage to the Supreme Court. Whilst expressly stating that the case left the Justices feeling “uneasy” and “troubled” and endorsing the continuing practice of lawyers to providing the minimum detail necessary to convince the Court that the marriage has irretrievably broken down, Mrs Owens’ appeal was dismissed.
Resolution supports a change in the law, allowing a no fault divorce. Surely now, the time has come for Parliament to reform these archaic laws.
As for Mrs Owens, should she wish to do so, she will be in a position to issue a new Petition in 2020, when she will by then have lived separate and apart from Mr Owens for a continuous period in excess of 5 years.
Article written by Dawn Gore