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Proving Facts in Defended Divorce Proceedings (17 February 2017)

Date: 17/02/2017
Duncan Lewis, Legal News Solicitors, Proving Facts in Defended Divorce Proceedings

Tini Owens recently made headlines in the UK press following her Valentine’s Day hearing in the Court of Appeal fighting against an Oxford judge’s refusal to grant her divorce. Mrs Owens’ case is one of few divorces which was defended in recent years.

Mrs Owens petition for divorce was based on the fact that her husband, Hugh Owens, had behaved in such a way that she could not reasonably be expected to live with him; one of five potential facts which can be relied upon when petitioning for divorce.

Amongst the allegations in her petition Mrs Owens’ alleged that her husband was insensitive, constantly mistrusted her and treated her in a childlike manner. Mrs Owens stated that she was desperately unhappy in her marriage for many years and that there was no prospect of reconciliation.

However, the court ruled against Mrs Owens concluding that the allegations made by Mrs Owens were of the kind to be expected in marriage.

The current test when determining whether the petitioner has proved unreasonable behaviour is set out in Livingstone-Stallard v Livingstone-Stallard [1974] as approved in subsequent cases including O’Neill v O’Niell [1975] and Birch v Birch [1992]:

"Would any right-thinking person come to the conclusion that this husband has behaved in such a way that this wife cannot reasonably be expected to live with him, taking into account the whole of the circumstances and the characters and personalities of the parties"

Examples of behaviour that has previously been cited in divorce petitions which have resulted in a Decree Absolute being granted include cases of violence and alcoholism, extra-marital relationships that did not constitute adultery, obsessive DIY, financial irresponsibility, petty criticisms of the wife over matters including her cooking, way of life, friends and dancing, calling the wife names, the husband being dogmatic and dictatorial and belittled the wife’s opinions. Each case of this type is unique and is decided upon its own facts and findings.

The court will determine whether Mrs Owens’ trivial allegations will prove that Mr Owens has behaved in such a way and Mrs Owens’ cannot reasonably be expected to live with him, the ruling of the Justices’ is awaited.

Reform of the law in this area has been sought and many hope for a change in the law to allow ‘no-fault’ divorce which would allow each party to make a declaration that the marriage has irretrievably broken down without proving any facts, a change which would benefit individuals who find themselves in a position similar to that of Mrs Owens.

Sir James Munby, who led the appeal judges on 14th February 2017, said ‘it is not a ground for divorce if you find yourself in a wretchedly unhappy marriage – people may say it should be’. The question is whether those in Mrs Owen’s position should be forced to remain in an unhappy marriage because of a law that is outdated.

With the bill introduced to reform the law in this area making no progress through Parliament, it remains to be seen whether cases of this type will continue to spatter new headlines in coming years or whether recourse will be found for those who are left to fight to end their marriage.

Author Emily Reed is a Trainee Solicitor in the Hackney branch of Duncan Lewis Solicitors. She works in the Family department and has experience working voluntarily for various organisations carrying out legal work for family law clients.

Duncan Lewis' Family department, ranked by Legal 500 2016 for its Family & Matrimonial work, provides confidential advice with effective representation and includes Advanced members of the Law Society’s Family Panel, and members of the Law Society Children Panel.


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