This article by Jennifer Allen looks at the extent to which either pre or post-nuptial agreements will be taken into account by the Court and also looks forward to the impact Brexit may have on this area of law.
Why Can't I get Divorced?
- AuthorMarcus Crawley
Behaviour Divorce Petitions and the Dismissal of the Owens Appeal
The Supreme Court handed down Judgment on 25 July 2018 in respect of the appeal of Mrs Owens, who was appealing against the decision of the lower Courts who dismissed her petition for divorce. The Supreme Court dismissed Mrs Owens’ appeal and thus she remains married to Mr Owens.
Mrs Owens petitioned for divorce based on the behaviour of her husband. She alleged that Mr Owens’ behaviour was such that she could not be reasonably expected to live with him. Mr Owens defended the petition stating, at the outset of proceedings, that the marriage had not irretrievably broken down and that he largely denied the allegations of Mrs Owens and that his behaviour did not have the impact on her that she suggested.
Hughes Paddison represented Mr Owens in defending those divorce proceedings.
In her appeal to the Supreme Court, Mrs Owens initially sought to change the interpretation of the law in respect of behaviour petitions to require “not that the behaviour of Mr Owens had been such that she could not reasonably be expected to live with him but that the effect of it on her had been of that character”. This would have entailed a shift to a more subjective interpretation of the statute. During the course of the proceedings, Mrs Owens conceded that this may be a step too far. In her Judgment, Lady Hale commented on the role of the judiciary, stating that “It is not for us to change the law laid down by Parliament – our role is only to interpret and apply the law that Parliament has given us”. In light of this, I set out below a brief look at the current law in respect of obtaining a divorce in England and Wales.
The Current Law in respect of Divorce
The divorce process is usually administrative. This ordinarily means that neither party to the marriage will need to see a judge to get a divorce, as it is almost always accepted by a judge based on the paperwork. Defended divorces (such as the Owens case) are rare and it is only when one party seeks to defend the divorce that a party will be required to attend Court.
The document commencing the divorce is called a petition. The law in this country still requires one spouse to petition against the other, even if both agree that there should be a divorce. You cannot file a petition for divorce in the first year of your marriage.
To start a divorce, you (or we, on your behalf) must file a petition at court. The petition is a form that gives the court information about you and your spouse and tells the court why you feel your marriage has irretrievably broken down (being the only ground for divorce). You can demonstrate that your marriage has irretrievably broken down by proving one of the following five facts:
- Your spouse has committed adultery and that you find it intolerable to continue living with them
- Your spouse has behaved in such a way that you cannot reasonably be expected to continue living with them (this is the fact relied upon unsuccessfully by Mrs Owens)
- Your spouse has deserted you for two years
- You have lived apart for two years and your spouse consents to the divorce, or
- You have lived apart for five years
In light of the fact that Mrs Owens has not proved her case in respect of her allegations regarding Mr Owens’ behaviour and, in the absence of consent to advance being forthcoming, she will have to wait 5 years from the date of separation before she can file her next Petition. This will not be until 2020.
If you require assistance in relation to issuing divorce proceedings, please feel free to contact a member of our Family Law Department on 01242 574244 and we will be happy to meet you and discuss your situation.