In the light of the Court of Appeal’s recent decision in Owens v Owens, family solicitors are having to reconsider their approach to ‘behaviour’ as a fact relied upon when petitioning for divorce.

Grounds for divorce

There is only one ground on which a petition for divorce may be presented, and that is the irretrievable breakdown of the marriage. To demonstrate irretrievable breakdown the petitioner (the spouse who issues the petition) must satisfy the court of one of five facts:

  1. The respondent has committed adultery and the petitioner finds it intolerable to live with the respondent
  2. The respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent
  3. The respondent has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petition
  4. The parties to the marriage have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition and the respondent consents to a decree being granted
  5. The parties to the marriage have lived apart for a continuous period of at least five years immediately preceding the petition

Owens v Owens

Mrs Owens petitioned Mr Owens on the basis of his ‘unreasonable behaviour’.

Behaviour is the most common fact relied upon by petitioners in England and Wales (in 2013, 54% of petitions issued by wives relied on this fact[2]). This is often because it is the only one of the five facts that a petitioner can rely on at the time the petition is presented. That is the position in which Mrs Owens found herself back in February 2015.

The problem faced by Mrs Owens, and the problem that now faces family lawyers advising their clients on behaviour petitions, is that the ‘reasonableness’ of the behaviour complained of is an entirely subjective concept.

What is ‘unreasonable behaviour’?

When considering whether behaviour is reasonable or not, the court will take into account both the history of the marriage and the personalities of the individuals. As such, there is no requirement that the behaviour must be terrible, or even particularly bad. Nor does a petitioner have to prove that the respondent intended for their behaviour to cause upset.

It is precisely because the concept of reasonableness is subjective that it became best practice for lawyers preparing unreasonable behaviour petitions to use relatively anodyne examples of behaviour, in order to reduce conflict between the parties. Crucially for respondents to behaviour petitions, the behaviour relied upon in the divorce will not (save in extreme cases) be taken into account by the courts when determining ancillary financial matters. There is, therefore, no financial detriment (other than paying costs of divorce) to a respondent who allows a petition to proceed on the basis of his or her unreasonable behaviour.

It is also common for the particulars of behaviour to be agreed between the parties prior to the petition being presented to the court (this reduces the risk of a defended petition and helps to promote a constructive approach).

Defending a divorce petition

The examples Mrs Owens gave of her husband’s behaviour are very much in line with what we would expect to see in a behaviour petition. She complained that Mr Owens prioritised his work over home life, that he was not providing her with love, attention or affection, and that he had been unpleasant and disparaging towards her.

Unfortunately for Mrs Owens, her husband was opposed to the divorce proceeding and he defended her petition on the grounds that his behaviour had not been unreasonable in the context of their marriage.

Mrs Owens was directed to amend her petition to give further and more detailed examples of Mr Owens’ behaviour. Mr Owens, in turn, was given the opportunity to expand on his defence.

The matter was subsequently set down for a hearing at which Mrs Owens’ petition was dismissed. The judge at first instance described the petition as ‘hopeless’, ‘anodyne’ and with allegations that were ‘at best flimsy’. Mrs Owens was said to have exaggerated the context and seriousness of the allegations to a ‘significant extent’ and that they were at most ‘minor altercations of a kind to be expected in a marriage’. The judge also thought Mrs Owens was more sensitive than most wives.

Ultimately the court found no behaviour that Mrs Owens could not reasonably be expected to live with and so the marriage could not be said to have broken down irretrievably.

Court of Appeal

It is extremely unusual for a divorce petition to be dismissed. This was highlighted by Mrs Owens on appeal to the Court of Appeal. However, the Court of Appeal found favour with Mr Owens’ position that ‘unhappiness, discontent and disillusionment’ are not facts which a petitioner can rely upon as facts which prove irretrievable breakdown.

The Court of Appeal reviewed the relevant case law and returned to the question enshrined in statute: has the respondent behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent? The Court of Appeal was satisfied that the judge at first instance had correctly applied the law and Mrs Owens’ appeal was dismissed accordingly.

Absent Mr Owens’ consent to a petition proceeding, Mrs Owens now faces the unattractive prospect of waiting until 2020 (when she will be aged 70), five years from the date of separation, in order to obtain a divorce on the fact of five years’ separation without consent.

The future of divorce petitions

Whilst the outcome in Owens v Owens would appear undesirable, it is for Parliament, not the courts, to determine the legislation governing divorce in England and Wales. Until there is a change in the law, it is inevitable that behaviour petitions will always run the risk that the behaviour relied upon is considered to be reasonable in the context of the parties’ marriage.

What also seems inevitable is that, in cases where there is any risk, lawyers drafting behaviour petitions are likely to be putting more extreme examples of behaviour than they would have done in the past. It is important, if in doubt, to obtain expert advice on what to include in your petition for divorce, to reduce the risk of finding yourself in Mrs Owens’ shoes, counting down the years until you can finally regain your independence.