In the Case of Owens v Owens 2017 the Court of Appeal was asked by the wife Tini Owens to overturn a ruling by the lower Court that the marriage of 39 years had broken down due to her husband Hugh Owens’ unreasonable behaviour. In a land mark decision in March the Court of Appeal dismissed the Wife’s appeal as the examples of behaviour used were insufficient to constitute unreasonable behaviour.
The case is unusual because very few divorces are now defended and most people accept the content of a divorce petition as a necessary evil to allow the divorce process to continue, regardless whether they believe it is just or accurate. Here there were 27 separate allegations of the Husband’s behaviour. Surprising when most family lawyers endeavour to ensure divorce petitions are concise, mild and, if possible, agreed.
Whilst this case is regarded as being extraordinarily unusual given the length of the marriage and the fact that on Mrs Owen case the marriage had clearly broken down it prompts us to look carefully at what constitutes unreasonable behaviour.
What is Unreasonable Behaviour?
The law provides for a basis:
“That the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent”
So there really isn’t a requirement for the behaviour to be ‘unreasonable’ as such. The Court considers whether the petitioner can reasonably be expected to live with the respondent looking at the conduct of the respondent on the one hand and its effect on the petitioner on the other . This is largely subjective however and the history of the marriage is also taken into account.
Examples of Behaviour do not have to be extreme ones such as:-
- The Respondent has been violent towards the Petitioner.
- The Respondent has threatened the Petitioner with physical violence or has been physically abusive.
- The Respondent has been verbally abusive towards the Petitioner.
- The Respondent drinks to excess, and when he is under the influence of alcohol he behaves in an unreasonable and aggressive manner.
- The Respondent is financially irresponsible, and has failed to maintain the Petitioner and/or the children properly during the marriage.
- During the marriage the Respondent has gambled to excess and has, on numerous occasions, caused considerable distress to the Petitioner by running up large gambling debts and dissipating the family’s savings.
But can be such things as:
- The Respondent has formed an improper relationship with a woman whose identity is unknown.
- The Respondent refuses to discuss the issues within the marriage with the Petitioner.
- The Respondent does not want to engage in any sexual or physical relations with the Petitioner.
- The Respondent shows no interest in socialising with the Petitioner and prefers to socialise alone with friends.
- The Respondent refuses to try and resolve the issues and continues to behave in an unreasonable manner.
At the moment, as the law stands, unhappiness, discontent, disillusionment are not facts which a petitioner can rely upon as facts which prove irretrievable breakdown. But it is possible to look at someone’s lifestyle to find examples of how this affects them which could be used in the Petition.
Unlike Mr and Mrs Owen, most couples agree that their marriage has broken down, and they know that the only way they can divorce swiftly and move on with their lives is for one to accuse the other of unreasonable behaviour. At Woodfines Cambridge office, Clare and Jackie are members of Resolution. This is an organisation for specialist family lawyers, which sets out a Code of Practice to work to. Part of this is that we seek to minimise conflict by drafting particulars of unreasonable behaviour that are sufficient to persuade the court that the marriage has broken down, but are worded carefully so as not increase conflict unnecessarily. Where possible, these particulars are agreed with the other party before issuing the petition.
We were part of the Resolution lobbying day at Parliament last year which was part of Resolution’s continued attempt to seek a change in the law to allow a “no fault divorce”.
Mrs Owens has now filed a further appeal to the Supreme Court and this may give rise to further clarification on what for many is already a stressful process without having to set out excessive and detailed allegations to obtain a divorce.