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Mrs Owens appealed against an order of the Court of Appeal of 24th March 2017 by which it dismissed her appeal against the dismissal of the petition for divorce. The Supreme Court heard the matter on 17th May 2018.
Mrs Owens and Mr Owens married in 1978, they are aged 68 and 80 respectively. During the marriage, Mr Owens started a company which has made both parties significantly wealthy. Mr Owens continues to reside in the former matrimonial home, a manor house in Gloucestershire. Mrs Owens resides next door, in a property which they also own.
Mrs Owens first petitioned for divorce in May 2015 relying on section 1(2)(b) of the Matrimonial Causes Act 1973, that her husband had behaved in such a way that that she cannot reasonably be expected to live with him. This was 3 years after first consulting solicitors about a divorce and having sent a draft petition to Mr Owen’s solicitors, all of which occurred whilst she was having an affair which subsequently ended in May 2013. Mrs Owens explained to the judge that the affair was as a result of a “bad marriage”, not the cause of the divorce. However the judge suggested that the affair gave her an ulterior motive for the proposed petition, and believed that the existence of her affair “knocks out” the allegations made against Mr Owens in her behaviour based divorce. The Supreme Court disagreed with this view.
Mrs Owens described Mr Owens as having prioritised his work over their family life, his treatment of her lacked love or affection; he had often been moody and argumentative and had disparaged her even in front of others. As a result of his behaviour she felt unhappy, unappreciated, upset and embarrassed and thus has grown apart from him.
Mr Owens, on the other hand, denied the allegations made by his wife and argued that despite their marriage lacking emotion, the marriage had nevertheless been successful and the parties had learned to “rub along.”
As a result of Mr Owens defence of the divorce, Mrs Owens was granted permission to amend her petition so as to provide more details as to the behaviour she intended to rely- which she did, with 27 individual examples. The Judge, however, regarded her examples as “at best flimsy” and criticised her for having over exaggerated their context and seriousness which, they deem was the result of her over-sensitivity.
This case has raised issues about the interpretation of the subsection, as to whether the behaviour itself must constitute sufficient grounds for divorce or whether the emphasis must lie on the effect that the behaviour had on the proposed petitioner. As in this case, Mrs Owens argued that the “entire focus should be on the reaction of the petitioner to the respondent’s behaviour” rather than an objective approach of whether the behaviour was sufficient.
The Supreme Court were persuaded to dismiss the appeal of Mrs Owens, on the premise that if they were to allow the appeal and send the case back to be re-tried, it would be contrary to the interests of the parties and such a prospect would fill the petitioner with, in her own words, “dread”. Consideration was given to the fact that in February 2020, the parties would have been separated for 5 years and thus, Mrs Owens would be entitled to petition for a divorce on the ground of 5 years separation without consent. For now, therefore, Mrs Owens remains married to Mr Owens in law.
This case teaches us that the court’s will have the power to strike out a petition for divorce in the case that the grounds upon which the petitioner intends to rely are not sufficient.
The law surrounding divorce is, at best, outdated. Whilst there remains a requirement of fault and blame which often inflames the relationship, there is no room for amicable separation even though it is recorded that “agreed outcomes are less costly and damaging, [and] that trying to apportion blame is a fruitless and inherently non-justiciable task and that defence is futile where one party has decided the marriage is over.” There has been much momentum in the ‘no fault divorce’ which will allow parties of a divorce to do so immediately i.e. not waiting for two years separation with consent, and without the need for extensive justification. We will keep up to date in the progression of the reform.
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