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Divorce law blog

Owens v Owens – what does it mean for you?

27/07/2018   By: Nicola Rowlings

Owens is a rare and unusual case where three courts have now decided that a wife did not sufficiently prove that she could not reasonably be expected to live with her former husband because of his behaviour and have declined to grant her the divorce she is seeking. Since the Supreme Court handed down their judgment on Wednesday, much has been in the press and social media about this case but what does it mean if you are thinking about starting a divorce based on your ex’s behaviour? Well, it’s very much business as usual. 

Divorces are only granted when a marriage has irretrievably broken down.  This is established by showing one of the following:

  • the couple have lived apart for five years

  • they have lived apart for two years and both agree to end the marriage 

  • there has been adultery

  • the person bringing the divorce cannot reasonably be expected to live with the other because of the other’s behaviour (so-called “unreasonable behaviour”)

  • desertion 

The most popular reason for divorce is behaviour. Preparing a divorce petition based on behaviour is a balancing act – the examples or allegations of behaviour need to be sufficiently strong enough to satisfy the legal test the court applies whilst at the same time ensuring that the wording does not inflame what is already a difficult situation. For many years now, family lawyers have prepared simple, mild petitions which seek to avoid hurt and upset and which mean that the couple can focus on settling their financial arrangements and the arrangements for their children as amicably as possible. It is universally agreed that this is the best approach.

In the vast majority of divorces based on behaviour, what the legal test is makes no difference at all. That’s because almost all divorces are “undefended” or unopposed. Most people accept the content of a divorce petition as a necessary evil to allow the divorce process to continue, regardless of whether they believe it is fair or accurate. The examples of behaviour are not heavily scrutinised by the court in these undefended cases.

Because Mrs Owens’ former husband fully defended the divorce (and there’s only about 20 of those a year out of almost 114,000 divorce petitions), the court did have to look more closely at the legal test and the examples of behaviour Mrs Owens was relying on. And yes, they found that they weren’t sufficient to enable a court to grant her a divorce. Does that mean there is a hurdle of “bad behaviour” that has to be crossed? Does that mean instead of using concise, mild examples of behaviour everyone should now start using aggressive ones?

In a word, no. My best advice is to keep calm and carry on as before. That’s exactly what the Supreme Court have told us to do.

The Supreme Court clearly say that they don’t want to suddenly see lots of horrible accusations and allegations in behaviour petitions off the back of this case. That helps no one; it certainly does not help you or your ex when you are splitting up, especially given how rare what has happened to Mrs Owens is. It is also not what the law is looking for.

In my experience, the examples of behaviour detailed in divorce petitions vary hugely. Different people have different marriages and therefore very different reasons for separating. However, if you are basing your divorce on behaviour, the balancing act remains. There are some golden rules:

  • you do not need to set a long list of your ex’s faults – at most, six is enough
  • stay clear of issues surrounding the children 
  • don't include financial problems if you don't have the evidence to back it up 
  • explain what the effect your ex’s behaviour has had on you - if they are spending too much time at work, explain how that makes you feel 
  • show your ex a draft of your petition before you send it to the court and ask for them to agree it – that can help defuse any problems early on 
The family team at Mills & Reeve have a wealth of experience of dealing with behaviour petitions. If you have any concerns either preparing one or if you are at the receiving end, they will be happy to advise you on the best way forward in your circumstances.

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