Owens v Owens: can any good come from Court of Appeal’s worrying divorce ruling?

Owens v Owens: can any good come from Court of Appeal’s worrying divorce ruling?

The Court of Appeal’s extremely unusual ruling in Owens v Owens refused a ‘desperately unhappy’ wife a divorce from her husband.

Despite his alleged unreasonable behaviour, and Mrs Owens’s affair with another man, Mr Owens successfully argued his marriage of 39 years had not broken down irretrievably.

The allegations made by Mrs Owens are not any different to what we see in most divorce petitions based on ‘unreasonable behaviour’.

The main difference in this case is that Mr Owens sought to defend the divorce proceedings. The vast majority of divorce petitions are undefended.

As an example, I’ve dealt with just two fully defended divorces in over 20 years’ practice.

Even if a divorce is not opposed it still has to be approved by the Court.

The reality here is that, in my opinion, if Mr Owens had not defended the divorce then it would have been approved by the Court without any question or query.

The concern is about where this leads to next and, at this stage, we don’t know.

It may just be a blip and everything will continue as before.

It may lead to more respondents electing to defend the divorce proceedings. Which will put a greater strain on an already overloaded court system.

It may mean petitioners presenting divorce petitions packed full of allegations, just to try make sure that it is successful. But that will do little to preserve the dignity of the parties.

As a family lawyer, my approach in acting for a petitioner is to include what I believe will be sufficient detail to get a behaviour-based petition through the Court, without it turning into a witch hunt against the respondent.

If I’m acting for a respondent then I’m usually advising about the pitfalls of defending the divorce, such as cost, timescale and what I see as the reality of the situation.

In other words, taking a pragmatic approach to the situation. Whether these principles will now be challenged I do not know.

If there is any good to come out of Owens v Owens, it’s that it will add some momentum to the argument for divorce reform and, in particular, no-fault divorce.

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