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The Court of Appeal recently upheld a High Court Judge’s decision not to allow a wife’s Divorce Petition filed on the grounds of her husband’s unreasonable behaviour.

The Divorce process is instigated by one party filing a Divorce Petition at the Family Court. There is only one ground upon which a Divorce Petition can be filed, which is that the marriage has irretrievably broken down. The irretrievable breakdown of the marriage must be demonstrated in one of five ways: adultery, unreasonable behaviour, two years’ separation with consent, five years' separation or desertion.

In the case of Owens v Owens [2017] EWCA Civ 182 the parties had married in 1978 and had two adult children. The couple separated in February 2015 and the wife filed an unreasonable behaviour Petition in May 2015, alleging that her husband had behaved in such a way that she could not reasonably be expected to live with him.

The wife’s examples of her husband’s unreasonable behaviour included the following:

1. The Respondent prioritised his work over home life, causing the Petitioner much unhappiness and making her feel unloved.

2. The Respondent did not provide the Petitioner with love, attention or affection which made the Petitioner feel unappreciated.

3. The Respondent suffered from mood swings which caused frequent arguments between the parties which were very distressing and hurtful for the Petitioner.

4. The Respondent was unpleasant and disparaging about the Petitioner both to her and to their family and friends. The Petitioner felt upset and/or embarrassed by the Respondent’s behaviour towards her.

5. As a result of the Respondent’s behaviour towards her, the Petitioner and the Respondent have until recently lived separate lives under the same roof for many years.

In July 2015 the husband filed an Acknowledgment of Service confirming he intended to defend the case on the basis that their marriage had not broken down.

The case was listed for hearing and heard by His Honour Judge Tolson QC. The Judge was unimpressed with the wife’s Petition and described the allegations as “at best flimsy”. In his judgement the Judge acknowledged that the law permitted him “to grant a decree of divorce only if [he] could find on a balance of probabilities that ‘the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent’.” In determining whether the respondent’s behaviour was such, the Judge considered all of “the circumstances of the case and the characters and personalities of the parties”.

The Judge concluded that he had “not found this a difficult case to determine” and after cross examination of both parties could “find no behaviour such that the wife cannot reasonably be expected to live with the husband” and dismissed the Petition.

Mrs Owens appealed the decision. Sir James Munby, President of the Family Division, found that His Honour Judge Tolson QC had “directed himself correctly in law.” He continued that “his reasoning...displays no error of law, principle or approach”.

Sir Munby dismissed the appeal but did note that the effect of the judgement was to leave Mrs Owens in a “wretched predicament, feeling, as she put in her witness statement, unloved, isolated and alone and locked into a loveless and desperately unhappy marriage”. 

Lady Justice Hallett commented in her judgement that it is a Judge’s duty to “apply the law as laid down by Parliament. We cannot ignore the clear words of the statute on the basis we dislike the consequence of applying them”. Lady Justice Hallett continued that “it is for Parliament to decide whether to amend Section 1 and to introduce “no fault” divorce on demand”.

Mrs Owens intends to appeal the decision of the Court of Appeal.

This case highlights the need to ensure that unreasonable behaviour Petitions are drafted appropriately to demonstrate to the Court that the marriage has irretrievably broken down. Examples of unreasonable behaviour do not need to be unpleasant, hostile or aggressive and parties should, where appropriate, agree the examples used before the Petition is filed with the Court.

It also raises the question as to whether the law in this area needs to be revised. Many would argue that there is a need for a ‘no-fault’ divorce so as to remove the requirement for one party to blame the other for the breakdown of the marriage.  

If you require any further advice in relation to separation or divorce then please contact our Family Team on 01603 610911.

Note: The content of this article is for general information only and does not constitute legal advice. Specific legal advice should be taken in any particular circumstance.