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Owens v Owens: How unreasonable does behaviour have to be?

22/08/17

Beth Mason | Associates | Family Department

Georgia Day | Solicitors | Family Department

Tini Owens married Hugh Owens in January 1978 and together they had two children.  Mrs Owens filed for divorce on 6th May 2015 on the basis that Mr Owens had behaved in such a way that she could not reasonably be expected to live with him.

On 16th July 2015 Mr Owens indicated his intention to defend the divorce, thereby bringing about a trial.  By the time of the hearing in January 2016 the couple had been living apart for 11 months.

The case was brought before His Honour Judge Tolson who, on 15th January, ruled in favour of Mr Owens and dismissed Mrs Owens’ 27 allegations of unreasonable behaviour in her petition.  HHJ Tolson stated, “in reality I find that the allegations of alleged unreasonable behaviour in this petition – all of them – are at best flimsy.  I would not have found unreasonable behaviour on the wife’s pleaded case”.

In February 2017 the Court of Appeal reviewed the decision of HHJ Tolson.  The appeal was largely based on two arguments; firstly, HHJ Tolson adopted a process that was seriously flawed and, secondly, that Mrs Owens’ rights under Articles 8 and 12 of the European Convention were clearly engaged and thus the old authorities on which HHJ Tolson relied should be reviewed.  Emphasis was placed on the failure to assess the cumulative impact of Mr Owens’ behaviour on Mrs Owens. 

The Court of Appeal unanimously upheld the order of HHJ Tolson.  President of the Family Division, Sir James Munby, said, “Parliament has decreed that it is not a ground for divorce that you find yourself in a wretchedly unhappy marriage, though some people may say it should be”.

Mrs Owens has been granted permission to appeal to the Supreme Court and a hearing date is awaited.  Mrs Owen’s team will argue that the statute does not require the court to find there was unreasonable behaviour but rather that there was behaviour such that the petitioner (Mrs Owens) could not reasonably be expected to live with the respondent (Mr Owens).

Currently in England and Wales if parties wish to divorce in the first two years of their separation then the divorce must be based on one parties’ unreasonable behaviour or adultery.  Once the parties have been separated for two years then, provided they both agree to the divorce, it is possible for the divorce to be granted.  In the case of Mr and Mrs Owens, as Mr Owens does not agree to the divorce, and the Courts have so far ruled that Mrs Owens’ grounds for divorce are not sufficient, Mrs Owens will have to wait until the parties have been separated for five years before being able to divorce Mr Owens without his agreement, unless she is successful at the Supreme Court.

This case brings the debate over ‘no fault’ divorce back into the spotlight and has prompted Resolution (an organisation of family lawyers) to file submissions in support of Mrs Owens’ application for permission to appeal to the Supreme Court. 

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