The case of Owens v Owens – permission to appeal the decision against the dismissal of her divorce petition
09 / 08 / 2017
Earlier this year, in the case of Owens v Owens, the wife appealed against the dismissal of her divorce petition, after her husband, unusually, defended the divorce.
The wife’s divorce petition was based on the ground of unreasonable behaviour; that being that the Respondent (the other person – here, the husband) has behaved in such a way that the Petitioner/Applicant (in this case the wife) cannot reasonably be expected to live with the Respondent (the husband).
The Court of Appeal in the above case (after the initial Judge determined that the wife was not entitled to a divorce on the ground of unreasonable behaviour and she appealed that decision) said that “what the authorities show is that, in a case such as this, the court has to evaluate what is proved to have happened
(i) in the context of this marriage,
(ii) looking at this wife and this husband,
(iii) in the light of all the circumstances and
(iv) having regard to the cumulative effect of all the respondent’s conduct.
The court then has to ask itself the statutory question: given all this, has the respondent behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent?”
The wife was not successful in her application to the Court of Appeal.
One of the Judges in the Court of Appeal went onto say that “This was a petition for divorce under section 1(2)(b) of the 1973 Act [the ground of unreasonable behaviour]; the judge could only grant the petition if satisfied that the husband has behaved in such a way that the wife cannot reasonably be expected to live with him. I accept that concepts of unreasonable behaviour may change over time. I need no persuading that behaviour considered trivial in the context of a happy marriage may assume much greater significance for a husband or wife trapped in an unhappy marriage. I bear very much in mind the cumulative effect of any proven behaviour and, of course, I bear very much in mind the impact of this particular husband’s behaviour on this particular wife…I very much regret that our decision will leave the wife in a very unhappy situation. I urge the husband to reconsider his position. On any view, the marriage is over. I can only hope that he will relent and consent to a divorce on the grounds the parties have lived apart for a continuous period of two years, rather than force his wife to wait until five years have elapsed”.
Mrs Owens has now been given permission to appeal to the Supreme Court so we will await the outcome of that decision in due course.
We will also wait to see whether the issue of a “no-fault” divorce may be further discussed. Currently, the Law in England and Wales for a divorce only allows “no fault” to be attributed to either party after a minimum period of two years since separation (the two years separation with consent ground – other grounds include 5 years separation – no consent required – or desertion). Otherwise, in order to proceed immediately (provided the parties have been married for at least a year) the Petitioner (the person applying for a divorce) must rely on one of the “fault based” grounds of either adultery or unreasonable behaviour – the latter being what the wife sought to rely on in this case.