This article was first published by Solicitors Journal on 02/05/17, and is reproduced by kind permission.
One of the most talked about family cases in recent months has undoubtedly been that of Tini and Hugh Owens. The facts seemed straightforward: the couple had been married for 37 years but in 2015 she moved out and filed for divorce, claiming their relationship had become ‘loveless’ and argumentative.
So far, so ordinary. But things took a turn for the unusual when her husband decided to defend the divorce, arguing that, despite her desire to end the marriage, it had not in fact broken down irretrievably. The judge at first instance surprised many by backing the husband, describing the allegations in Mrs Owens’ divorce petition as ‘flimsy’ and ‘minor altercations of a kind to be expected in a marriage’.
At the subsequent Court of Appeal hearing, Mrs Owens’ barrister rightly described the judge’s decision as ‘extraordinarily unusual’. The media reported how Mrs Owens was left locked into a loveless marriage. Nevertheless, the Court of Appeal once again found in favour of the husband. The judge’s decision had been correct in law, it concluded: the wife had failed to demonstrate that her husband had ‘behaved in such a way that [she] cannot reasonably be expected to live with [him]’, as defined by the Matrimonial Causes Act 1973.
As every family law practitioner will confirm, very few divorce petitions these days present allegations that are subsequently contested in court. Most people are sensible and accept that, once one party declares a marriage over, that essentially is that – barring the legalities of course. A petition based on behaviour does not require the other party to admit that the allegations are true (unlike an adultery petition where an admission would be required) and indeed many respondents will say when they file their acknowledgement of service form that they do not accept that all the particulars are correct or that they have been exaggerated, but nevertheless accept the marriage has broken down so they will not defend the petition. Such a response, often combined with the petitioner filing a petition which contains anodyne statements about the respondent, enables the divorce to progress without contest and without further acrimony.
Unless her husband changes his mind, Mrs Owens now has no choice but to wait until 2020, by which time the couple will have been formally separated for five years. At that point, the husband’s consent will no longer be required.
So what are we to make of this, as family lawyers? For some, the case was clear evidence of the pressing need for reform of our ageing divorce laws, with their arcane rules that require fault and blame if the parties cannot wait for two years of separation to elapse before they divorce. In this regard, the law in Scotland is already ahead of England and Wales in that it permits parties to divorce after a one-year period of separation. There is a growing number of professionals calling for such an approach to be adopted south of the border as well – though possibly fewer calling for a change to the very short periods of maintenance that are provided in Scotland.
When I read that Mrs Owens’ divorce allegations had been dismissed by the judge at first instance as bland and lacking in substance, my mind turned to how many divorce petitions I have drafted for clients over the years. Most of those, I admit, could have been characterised in exactly the same way as her petition but for the fact that the respondents in those cases chose not to defend the divorce. It was, of course, a deliberate approach on my part, one taken by many of my fellow practitioners and endorsed both by Resolution and the Law Society. It does little good to line up a long list of blistering accusations at the very start of the divorce process: all that will do is fuel acrimony and resentment. This crucial point seems to be lost on some lawyers unfortunately, and my heart sinks when I receive a divorce petition from another solicitor written in coruscating and highly damaging terms. I just know that months of wrangling over finances and arrangements for the children will almost certainly now follow.
The long-term legacy of Owens v Owens is likely to be twofold. First, there are those respondent spouses minded to delay the process, perhaps keen to avoid a financial settlement which can only form part of concluded divorce proceedings. They are likely to feel they can now resist divorce petitions filed by their spouses and this could prejudice the financially weaker party. Despite the costs and risks of defending a divorce, some will inevitably feel emboldened.
We are trying to evolve the divorce process to minimise the emotional and financial impact that marriage breakdown can have on the parties, their children, the wider family, and indeed society as a whole. Without wanting to undermine the importance of marriage as an institution by making divorce an easy thing to do, the case of Owens reminds us that our present law is out of date. But, ironically, I am not sure whether the proposed reforms to divorce would have helped Mrs Owens in circumstances where her husband simply would not agree to a divorce and instead intended to make her wait the maximum amount of time. Should we also reduce the five-year period down to a much shorter period of time – say two or three years? There should, in my view, still be a distinction between a period of separation after which both parties agree to divorce and the period that is required when one party does not want the marriage to be dissolved. One wonders whether there is a case for somebody having to wait as long as five years to end their marriage if the other party will not consent in this day and age.
Second, I fear that we may see more divorce petitions drafted in more strongly worded terms by divorcing parties and solicitors keen to avoid Mrs Owens’ situation. Any such shift would not really be necessary though, and I hope courts will continue to permit anodyne but undefended behaviour petitions to proceed. The key, of course, will be to discuss the content of the petition with the other party before it is issued. There will still be clear differences, however, between those divorces that are prepared by skilled practitioners and people who are stuck dealing with a divorce by themselves.
It will be interesting to see, in the absence of any actual reforms to matrimonial law, what issues the repercussions of this case throw up as we move towards an online divorce process.