The return of acrimony to divorce proceedings

I suppose it was inevitable. It has been reported that divorce petitions based upon ‘unreasonable behaviour’ are being drafted with far more acrimonious allegations, following the Court of Appeal’s decision in Owen v Owens in March this year.

To recap from the beginning, if a person wishes to commence divorce proceedings before they have been separated from their spouse for two years and in circumstances where their spouse has not committed adultery, then they can only do so on the basis of their spouse’s ‘unreasonable behaviour’ (to be technically precise, the law requires the person seeking the divorce (the ‘petitioner’) to show that the marriage has irretrievably broken down because the other party (the ‘respondent’) has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent). This entails the petitioner setting out allegations of that behaviour in their divorce petition.

This has been the law on divorce for nearly the last fifty years. However, the way in which the law has been applied shifted considerably over those years.

At the outset, the law was taken at ‘face value’, so that most judges expected the allegations to be quite serious in order to prove that the marriage had broken down irretrievably. However, as attitudes towards divorce changed, so did the approach of most judges. It was generally realised that there was no point in a court refusing a divorce where one party clearly believed the marriage to be over, so judges increasingly allowed through petitions containing only very ‘mild’ allegations of unreasonable behaviour.

This was coupled with the advent, some thirty years ago, of the concept of ‘non-confrontational’ divorce, led by the Solicitors Family Law Association, now Resolution. The idea was to reduce animosity in divorce proceedings (and other family law proceedings), in order to encourage the parties to adopt a more constructive approach, and hopefully to resolve their disagreements amicably, rather than through contested court proceedings. In the last thirty years such an approach has found favour not just with thousands of divorce lawyers, but also with many judges and other professionals and professional bodies involved in the family justice system.

Of course, making serious allegations about the other party’s behaviour is completely contrary to the non-confrontational approach. Accordingly, Resolution and others encouraged family lawyers to draft unreasonable behaviour divorce petitions with as mild allegations as they could, sufficient (it was thought) to persuade the court to allow the divorce through, but not such as to unduly antagonise the respondent, thereby jeopardising the chances of an ‘amicable’ divorce.

For years things proceeded quite happily in this way. Respondents to divorce petitions based upon allegations of their unreasonable behaviour could still seek to defend the petition, but successful defences were almost unheard of, with judges taking the view, as mentioned above, that it was pointless to refuse the divorce, and therefore finding that pretty well any allegations were sufficient to prove that the marriage had irretrievably broken down. In short, the successfully defended divorce was pretty well a thing of the past.

And then along came the Owens case.

Mrs Owens petitioned for divorce, based upon her husband’s unreasonable behaviour. The original allegations she made, which can be found in paragraph 4 of the Court of Appeal’s judgment, were very much the sort of thing that I, and I suspect most family lawyers, have come across hundreds of times (the allegations were later expanded, prior to the court hearing the divorce). Taken separately, the allegations were not particularly serious (as Mrs Owens’ counsel accepted), but taken as a whole it was felt that they did amount to ‘unreasonable behaviour’.

Mr Owens denied that the marriage had irretrievably broken down, and therefore defended the divorce. The case was listed for hearing before His Honour Judge Tolson QC. Unfortunately for Mrs Owen, Judge Tolson did not see things quite as might have been expected by her lawyers. As he was quite entitled to do under the law, he found that, despite the fact that the marriage had irretrievably broken down, Mrs Owens had failed to prove that Mr Owens had behaved in such a way that she could not reasonably be expected to live with him. Accordingly, Judge Tolson refused to grant Mrs Owens her divorce. Mrs Owens appealed to the Court of Appeal, but her appeal was dismissed – the Court of Appeal felt unable to interfere with Judge Tolson’s decision.

Mrs Owens is now appealing to the Supreme Court, although it is likely to be some months before we find out the outcome of the appeal. At least until then, practitioners are left with the new reality that unreasonable behaviour particulars may need to be ‘stiffened’, in order to ensure that their clients’ petitions are successful.

The recent report I referred to in the first paragraph provides anecdotal evidence from practitioners that, since the Court of Appeal decision in March, unreasonable behaviour petitions are being drafted with far more acrimonious allegations against respondents. Now, I don’t know how many such petitions these practitioners have seen in the last two and a half months, bearing in mind the fact that in the vast majority of cases it is clear that the respondent will not defend, and therefore ‘mild’ allegations will be sufficient. Still, it is a worrying trend, undermining years of hard work by practitioners trying to encourage a constructive approach, and potentially increasing the number of acrimonious divorce disputes, including ancillary disputes relating to finances and, most importantly, arrangements for children.

Personally, I am far from sure that the Supreme Court will find anything wrong with the reasoning of the courts below – based, as it is, upon the law as it stands at present. If that is the case, we will just have to hope that the next government swiftly enacts a new system of no-fault divorce, doing away with the nonsense of having to make allegations against your spouse.

Whatever, if the situation is left to remain as it is, we could see more respondents encouraged to defend divorces (often just to avoid financial responsibilities), and a significant increase in the number of acrimonious contested divorce and ancillary proceedings. Do we really want that?