Monday, 30 July 2018

Divorce on 'Unreasonable Behaviour'. Post-Owens, Where Are We?

Unless you've been imprisoned on a beach without access to any media since last week, you will know that Mrs Owens failed to persuade the Supreme Court to grant her a divorce. Mrs Owens? Yes, see http://www.breakinglaw.co.uk/2017/08/will-wife-gain-freedom-from-marriage.html 

But what does it all mean? Sooner or later the divorce  laws will almost certainly be changed by Parliament to make it clear that blame will not directly or indirectly feature in the divorce grounds. For the time being, it will only be in a toeful of cases each year that the Owens case will have any impact. Other cases will sail through as undefended and almost all of the defended cases will lead to a divorce being granted. Where there might potentially be  a problem (as in the Owens case) is with  a divorce petition which is based on what we call 'unreasonable behaviour' with the other party defending on the basis that they did not do what has been alleged against them or that what they did was not 'unreasonable behaviour'. 

What the Supreme Court stressed is that 'unreasonable behaviour' is a misdescription of the divorce ground. What has to be unreasonable is not the other party's behaviour but the expectation that the petitioner should have to continue living with them. And while the court has to be satisfied that the marriage (or civil partnership) has irretrievably broken down it matters not that such breakdown is attributable to some factor other than the other party' s behaviour.

One of the problems in the Owens case is that the judge at the original hearing when the wife was refused a divorce heard only a few of the wife's 27 allegations about the husband's conduct. Just one day had been allocated to the hearing. The wife had suggested a half day and the husband three days. The lesson to be learnt from the case is that where the other party is defending a 'behaviour' petition then the petitioner should not be economical in the number of allegations they are making and should ensure that the court allows enough time for a sufficient number of those allegations to be ventilated. The petitioner can start off with fewer allegations but add to them later if the other party resists the divorce petition. Making too many allegations at the start can provoke contention that might otherwise have been avoided.