It will have been hard to miss the press coverage of the divorce case between Mr. and Mrs. Owens which went all the way to the Supreme Court.  There is much talk of reforming the law so that a divorce can be obtained without making allegations of blame.  Unless and until the law is reformed we need to consider what effect this has on the way divorce applications are made.

It is rare for divorce proceedings to be defended because a pragmatic approach is normally adopted.  What is the point in spending legal costs in fighting a divorce application when one person at least thinks the marriage is over?  It takes two to make a marriage work.

Under the current law it is possible to obtain a divorce without making allegations of blame.  However, you either have to have been separated for two years and you both consent to the divorce. If there isn’t an agreement to the divorce you have to wait until you have been separated 5 years.  This is why Mrs. Owens has to wait until 2020 until she can apply for a divorce now.

The Owens’ case related to a specific part of the divorce law.  There is only one ground for a divorce which is that the marriage has irretrievably broken down but it has to be supported by one of five facts.  These include the separation periods referred to above, desertion for a period of at least two years or, if applying for a divorce before two years have passed since separation, adultery or “unreasonable behaviour” as it is usually referred to.

Petitions based on the fact of adultery require the Petitioner (the person apply for the divorce) to show that not only has the Respondent (their spouse) committed adultery with another person but also that the Petitioner finds it intolerable to live with them.  Therefore, if the Petitioner found out about the affair more than 6 months prior to the Petition but they have attempted to make this marriage work during those 6 months the court may not consider that it was intolerable to live with the Respondent and may not allow the divorce.

“Unreasonable behaviour” is a misnomer.  The actual wording is “the Respondent has behaved in such a way that the Petitioner cannot reasonably be expected to live with the Respondent”.  This is where the dispute lay between Mr. and Mrs. Owens.  Mr Owens accepted that the marriage had broken down.  He did not accept it was through his behaviour.  He said that he and Mrs. Owens had learnt how to “rub along” and the only reason why Mrs. Owens wanted a divorce and didn’t want to live with him was because she has met someone else and wanted to make a new life.

The case went to trial in the Central Family Court in London and the judge decided that Mrs. Owens had not shown that it was unreasonable to expect her to live with Mr. Owens.  She appealed against this judgment but the Court of Appeal found no reason to interfere with the trial judge’s decision.  The Supreme Court agreed with the Court of Appeal.

It is important to understand that in the appeal courts are only reviewing whether the decision of the lower court was correct on the information before the judge.  The appeal courts do not look at fresh evidence.

Mrs. Owens’ solicitor and her barrister approached the case in the way that most family lawyers would have done.  The Family Law Protocol, with which lawyers are expected to comply, recommends not inflaming the situation so the details of the behaviour in the petition were fairly mild.  When it became clear that Mr. Owens wanted to defend the divorce, Mrs. Owens amended her petition to include further information but only going back over the previous couple of years.  However, the trial was limited to one day because at the time they would have wanted to limit the costs involved in arguing over the divorce. As a result, Mrs. Owens only elaborated on a few of the incidents set out in her petition.  With the benefit of hindsight I am sure they wish they had done it differently because the whole proceedings were based on the information before the judge in that first trial.

So how does this affect divorce applications for the future based on behaviour?

It is still advisable to try to avoid inflaming the situation so we will try to agree that there is to be a divorce, the basis for the divorce and the details of behaviour to be included in the Petition to avoid any possible dispute.  If the divorce is not defended it will only be necessary to include sufficient information to justify the court granting a divorce in accordance with the law.

If, however, a divorce is opposed we will need to look at what options there are for agreeing separation terms to avoid embarking on very expensive defended divorce proceedings.  If there is no alternative it will be necessary to include as much information as possible in the Petition about the behaviour and there may well need to be a very lengthy trial going through each and every allegation of behaviour to enable the judge to decide whether it is unreasonable to expect the Petitioner to live with the Respondent.

Unless and until there is a change in the law, negotiating your way through the divorce minefield requires expert help and at Harrogate Family Law we have knowledgeable and compassionate family law specialists will be able to guide you through the process.  To find out how we can help you, call us today on 01423 594680.

Andrew Meehan is an experienced family lawyer specialising in complex divorces involving significant or hidden assets, as well as cases involving children.

He is recommended for family law by both Chambers 2018 (York, Hull and surrounding regions) and the Legal 500 2017 (Leeds/West Yorkshire and North Yorkshire region).

Everyone’s circumstances are different and this article is provided by way of general information only and must not be replied upon.  If you require legal advice on a family law issue, please feel free to contact us by emailing