Owens v Owens – A Case Of Divorce Purgatory

Author:Bishop & Sewell
Profession:Bishop and Sewell LLP

While a request for a divorce may come as a shock, most people come to the realisation that if their spouse considers that the marriage is over then, perhaps after attending marriage counselling, there is no point fighting the inevitable.

Five statutory facts

The law in England and Wales requires a marriage to have irretrievably broken down and one of five statutory facts to be proved. The third, fourth and fifth factors require spouses to have been separated for between two and five years, so the majority of divorce petitions are presented on one of the first two grounds: adultery or 'unreasonable behaviour'.  This is not only because people want to move on with their lives, but also because a financial claim cannot be progressed (other than on a voluntary basis) except within divorce proceedings.  Unless there is a new relationship, a divorce petition will be presented on the basis of 'unreasonable behaviour'.

The statutory test is "that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent". The wording of the statute suggests an objective test, but in considering what is reasonable, the court will have regard to the history of the marriage and to the spouses before it, so the test becomes rather more subjective.

To lessen acrimony, the practice among family lawyers is to submit a divorce petition to the other side for approval before it is issued. Any disputed allegations can then be removed or watered down so long as the grounds that remain are sufficient to satisfy a judge to grant a divorce.  As a result many divorces will be granted on what on the face of a divorce petition would seem to be very trivial reasons.

Owens v Owens

It is extremely rare in England for any divorce to be defended, but in early 2017 the defended divorce of Tini and Hugh Owens reached the Court of Appeal.

Hugh Owens did not want to be divorced from his wife even though she had had an affair in 2012 and had moved out of the family home. He said that he had forgiven her.  He defended her divorce petition and the case went to a hearing in which they both gave evidence in the witness box.  The judge was unimpressed by the wife's evidence describing it as "hopeless", "anodyne", and...

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