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/ 30 Aug 2018

The Difficulties of Divorce – Owens v Owens Case Update

In May 2015, Trini Owens initiated divorce proceedings against her husband of 34 years, Hugh Owens. Mrs Owens petitioned on the basis that Mr Owens’ unreasonable behaviour had caused their relationship to break down irretrievably. The other factual bases under the current law – adultery, two years separation with consent, desertion and five years separation – were not applicable in the case leaving Mrs Owens no choice but to rely on the behaviour ground. Filing a “fault based” petition such as this can often be viewed by the responding party as an aggressive and hostile step at an already emotionally fraught time. Unfortunately, as the current law stands the fault-based grounds are often the only options available to a petitioner who wishes to immediately pursue a divorce at the end of a relationship, as the law does not otherwise provide for “no fault divorce”.

 

Mrs Owens listed a number of examples of behaviour which had caused her to feel distressed and undermined by her husband including a lack of love and affection, mood swings and criticising her in front of others. Mr Owens chose to defend the divorce, a statistically rare move in itself, claiming that the mild examples of his behaviour could not be said to be so unreasonable that she couldn’t reasonably be expected to live with him – the legal threshold. Mrs Owens subsequently amended her petition to include 27 individual examples of behaviour. A hearing was set to determine whether the petition could proceed to Decree Nisi and whether the legal threshold had been met.

The case was first heard at a one-day hearing in January 2016 with only the parties giving evidence. His Honour Judge Tolson QC concluded that the behaviour had occurred and the marriage had broken down. However he could not find, on his interpretation of the evidence given, that the behaviour had been so bad that a reasonable person would say Mrs Owens could not be expected to live with her husband. The Judge claimed that the allegations of behaviour were “flimsy” and “exaggerated” and described Mr Owens’ as “somewhat old school”, perhaps excusing his behaviour. Mrs Owens’ petition was dismissed and as a result, she would be compelled to remain married to Mr Owens until they had been separated for 5 years, keeping her in an unhappy marriage until at least February 2020! The decision gained media attention and was criticised by Resolution, the national association of family lawyers committed to non-confrontational resolution of family disputes. Their #nofaultdivorce campaign hailed the case as a direct example of the problems of “fault based” petitions, and a demonstration of how and why the law needed to change.

Mrs Owens appealed the trial judge’s decision on 24th March 2017, claiming that he had failed to properly make findings of fact, failed to properly consider the effect of Mr Owens’ behaviour on her and had interfered with her rights under articles 8 and 12 of the European Convention on Human Rights. The appellate court found that the trial judge had correctly interpreted and applied the law as it stood but had arrived at an unsatisfactory, but valid, factual conclusion. Her appeal was denied.

Mrs Owens then took her appeal up to the Supreme Court in July 2018, but once again it was dismissed – albeit reluctantly. The court was similarly concerned about the trial judge’s conclusions, finding that the first hearing, carried out in one day and without the availability of third party witness evidence, was most likely insufficient to thoroughly explore each of the 27 allegations made in Mrs Owens’ petition. Had the circumstances been different the trial judge could well have concluded that the behaviour had affected her to the point that she could not continue to live with him Mr Owens any longer. However the conduct of the first hearing was not the subject of her appeal and as such they had no jurisdiction to overturn it. Mrs Owens’ claim that he had made an error in law was incorrect, he had heard the evidence and made findings of fact as required and was entitled to reach the conclusions he had on the basis of the evidence given. The court did comment that the application of the law to the facts should change over time in line with changes in society, and that this should have been reflected in the Judge’s decision when considering the conclusion a reasonable person might have reached. Mrs Owens had a right to expect to be treated as an equal to her husband and considered that the trial Judge might have overlooked the impact of Mr Owens’ “somewhat old-school” approach was having on her as an individual in the present day. Given a retrial of the facts was not the basis of the appeal, it was ultimately denied. That said, the Supreme Court did urge Parliament to consider changing the law in this area to prevent this situation happening again in the future.

A recent survey published in the bi-monthly Resolution Review found that 60% of members had experienced lawyers drafting more aggressive petitions than before the Court of Appeal judgement in this case. 67% of members surveyed also considered that the current law on divorce makes it harder for separated parents to reach agreements. It appears now more than ever that a change in the law is needed to provide couples dealing with the emotional trauma and upheaval of a relationship breakdown with a neutral way out at the point the relationship ends without the need to point fingers, assert blame or wait for years to pass. A private members bill calling for reform and for the introduction of no fault divorce is currently making its way through parliament, and we can only wait to see whether changes are made to bring the law up to date.

Whilst fully contested divorces of the Owens variety are rare, the result is a painful reminder of the limitations of the law on divorce and demonstrates the importance of seeking advice before the petition is issued. A carefully drafted petition and early communication between the parties via legal representatives can often help to minimise conflict at what is already a challenging and emotional time for divorcing couples.

Do contact the Family Law team at Hanne & Co if you need any advice in this area of law.

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