The call for 'no fault divorce' increases following recent Court of Appeal case
Anyone who has received divorce advice about bringing an unreasonable behaviour petition may have questioned the accuracy of that advice when reading…
Anyone who has received divorce advice about bringing an unreasonable behaviour petition may have questioned the accuracy of that advice when reading in the newspapers that the court has recently refused to grant Mrs Tini Owens a divorce based on her husband’s unreasonable behaviour.
Mrs Owens originally issued a petition with five allegations. None of them were dramatic or shocking. Resolution, the family law organisation which promotes a non confrontational approach to separation, advise that, where possible, reducing the number of allegations and trying to make them as palatable as possible to the other party will maximise the chances of the petition proceedings without being defended, balancing the need not to jeopardise the chances of the petition being refused by the court on a lack of grounds.
It is relatively unusual for petitions to be defended by the other party, usually because the cost of a defended divorce is high. Often both parties want, or at least accept, the divorce and understand as the law currently stands one of them has to be seen at fault unless they have been separated for more than two years and both agree to a divorce at that stage. Failing that, they must wait five years. It is also recommended practice to provide a draft of the proposed divorce petition to the other party before it is sent to the court so that it can be ascertained whether the other party intends to defend it.
However, in cases where the parties are extremely wealthy and one party does not want the divorce, the fear of legal costs will not deter that party from defending a petition. This is what happened in the case of Mr and Mrs Owens.
Before the case came before the court, Mrs Owens added to her petition so that there were 27 allegations of unreasonable behaviour against Mr Owens. The allegations the court focused on involved Mr Owens allegedly embarrassing Mrs Owens in public places, including an airport and a restaurant. The judge found that these allegations were “at best flimsy” and did not lead him to conclude it would be unreasonable to expect Mrs Owens to continue living with Mr Owen. With reluctance the Court of Appeal judges were forced to agree. For the time being at least Mrs Owens has no choice but to remain married.
Unreasonable behaviour petitions are often cited by family lawyers as a cause of heightened tension between divorcing couples which can be counter productive to a swift and cost effective settlement. For couples with children, such petitions risk making it harder for the parties to work together as parents. It is for this reason many family lawyers wish to see the introduction of no fault divorce (#abetterway).
The case of Mr and Mrs Owens is a sober reflection that the law is out of date with the times in which we live, and that day to day legal practise seeks to find constructive ways of moving cases forward despite of the law rather than with its assistance. It is important to receive specialist legal advice to ensure that if an unreasonable behaviour petition is challenged, it has been pleaded in a way that will be upheld by the court.