Dawn Pennell of Capron & Helliwell considers the recent decision in the case of Owens v Owens

Posted 06 April 2017 by Dawn Pennell

The Court of Appeal decision in this case has been in the news recently and it relates to divorce petitions which are based on a person’s behaviour.  It concerns Mr and Mrs Owens who married in 1978 and separated in early 2015.  They have two adult children.

You confirm in a divorce petition that you believe your marriage has irretrievably broken down and you choose one of five facts on which to base your petition.  Mrs Owens based her divorce petition on her husband having behaved in such a way which means she could not reasonably be expected to live with him.  She set out examples of his behaviour.  Her husband defended the divorce and a contested hearing took place.  They both gave evidence and were cross-examined.  The Judge agreed that the marriage had irretrievably broken down but decided that Mrs Owens had failed to prove her case so her divorce petition was not allowed to proceed.  He found that the various allegations were really part and parcel of what happens in a marriage and concluded that the allegations were “at best flimsy”.  Mrs Owens appealed but the Court of Appeal upheld the decision of the original Judge.

Most behaviour petitions are uncontested and petitions are rarely rejected but not in this case.

What is the effect of this?  As divorce lawyers we are encouraged to make behaviour allegations as mild as possible but by doing so risk petitions being rejected as being inadequate.  If the behaviour allegations are strengthened this conflicts with the approach advocated by Resolution.  Members of Resolution commit to work to an agreed Code of Practice to resolve disputes in a non-confrontational, constructive way designed to preserve people’s dignity.

What will Mrs Owens do? – it seems likely that she will be seeking permission to take her argument to the Supreme Court so we will have to wait to find out what is decided.

Will the “blame game” ever end?    Is the decision in this case an example of why we need to reform our divorce law to allow a “no fault divorce” as an option to divorcing couples.  Following a lobby day in Westminster last November Resolution continues to push for reform.

Dawn Pennell is a Chartered Legal Executive, Collaborative Lawyer and member of Resolution dealing with family law matters at Capron & Helliwell.  To book a 20 minute free family law clinic appointment with Dawn at our Stalham office please contact Tina Phillippo on 01692-581231/email her at t.phillippo@capronandhelliwell.co.uk 

This article aims to supply general information but it is not intended to constitute advice.  Every effort is made to ensure that the law referred to is correct at the date of publication and to avoid any statement which may mislead.  However, no duty of care is assumed to any person and no liability is accepted for any omission or inaccuracy.  Always seek specific advice.   

Capron & Helliwell Solicitors offer a range of legal services at the firm’s Stalham and Wroxham offices near North Walsham and Norwich in Norfolk. The firm specialises in areas including family law, conveyancing and private client law including wills and probate. Capron & Helliwell Solicitors offer free family law clinics – please call 01692 581231 for further details or to make an appointment.

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