The much awaited Supreme Court judgment in the case of Owens & Owens has now been publicised and has generated a lot of interest in the media.
What has happened is that the Court has simply reaffirmed the law in relation to the basis for divorce as originally set out in the Matrimonial Causes Act.
While it is common to describe divorce petitions based on behaviour as “unreasonable behaviour”, the full basis as set out in the Act is “The respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent”.
In recent times the practice has arisen of seeking to avoid unnecessary acrimony by restricting the particulars of “unreasonable behaviour “within divorce petition to typically half a dozen bullet points. The vast majority of divorces are not defended. Assuming there is sufficient material within the particulars, the petitioner is unlikely to encounter any difficulties when applying to the court for consideration of the petition and the fixing of a date for pronouncement of the decree nisi.
In a few cases divorce petitions are defended. The occasions are few because it is often accepted by the respondent that the marriage is at an end, even though there might well be disagreement as to the reasons for the breakdown of the marriage.
The divorce petition can only tell one side of a story and invariably the respondent will say that the allegations contained are either not true or are exaggerated, or have been made into issues with the benefit of hindsight. Typically the respondent will agree not to defend the petition on the basis that he or she reserves the right to dispute the allegations should they be raised in any other context, for example in relation to children or financial matters.
In the Owens case the divorce petition was defended and at the trial of the defended petition the Judge took the view that Mrs Owens had failed to prove a case for “unreasonable behaviour” and declined to grant a decree nisi.
The case has found its way up to the Supreme Court and the Court has, apparently with some misgivings, upheld the original decision to refuse a decree.
It is a reminder that it is still necessary for a petitioner who is seeking to rely on unreasonable behaviour to demonstrate to the court that there are sufficient particulars or allegations that justify this.
A general statement of unhappiness or growing apart will not suffice and indeed if a petition is too blandly expressed, it may avoid animosity; but on the other hand, it will not result in the granting of a decree, even if the petition is undefended.
In practical terms it means that Mrs Owens has no option other than to wait until the parties have been married for five years (I understand there is another two years to go). She will then be able to file a further divorce petition based upon the fact that the parties have been living separate and apart for five years. This is the only fact that she will be required to prove and the court will not be given any details as to the reason for the marriage break down or any allegations of behaviour.
There are two possible outcomes from this decision:
(1) Firstly, the decision strengthens the hand of those who argue that it is time that we moved on to a system for divorce that is not based on fault. This almost happened in the 1990s. Part I of the Family Law Act 1996 which was to have introduced a wholly no fault system was never implemented and was ultimately repealed. It is argued that resorting to petitions based on fault (where the necessary periods of separation are not there) only serves to increase acrimony. Whether or not there is any change in the law remains to be seen and in the current climate in which politicians seem to be almost exclusively focussed on Brexit, it is not going to be the top of anybody’s list.
It should also be borne in mind that there are many people who will not necessarily want that change in the law to come about and will feel that marriage is important and should be upheld, and if it is to be dissolved then it should be necessary to show, as a matter of public policy, that there was a good reason for it.
(2) The second likely outcome is a possible change in the way that under the current law petitions based on unreasonable behaviour are drafted, and how respondents deal with these when they receive them.
There is a possibility that respondents may derive encouragement from the case of Owens & Owens to defend petitions. Anyone committing themselves to defended proceedings needs to think very carefully as to what they are seeking to achieve by doing this. Either there was a genuine feeling that the marriage can be saved, or there can be a wish to thwart the wishes of the separated spouse, or to block the point at which the court can make decisions about financial issues given that the court has no jurisdiction to make orders of that kind until there has been a decree nisi pronounced. Defending a divorce is a purely tactical move and can be an expensive process because if the outcome were still to be the granting of a decree, the petitioner would be able to claim their costs from the respondent which will be so much greater if there had to be a full trial.
Those who are drafting divorce petitions may take a more aggressive view as to what particulars of unreasonable behaviour ought to be included. We may see a move away from the practice of using minimalist particulars and may instead draft petitions (as we used to do in the past) with one eye on a possible defence and the particulars having to withstand scrutiny and challenge of the court by the other party.
It would be a very unfortunate side effect of this case if we start to see petitions that appear more “bullish” in their contents.