Unreasonable behaviour in divorce is a ‘linguistic trap’, hears the Supreme Court

Published: 14th August 2017

The Supreme Court has granted a women the right to appeal the decision to not allow her to divorce her husband, based on his behaviour not being considered 'unreasonable'. This has lead to Philip Marshall QC describing unreasonable behaviour in divorce as a 'linguistic trap'.

Owens Vs Owens: The Divorce Case

Having married in 1978 and split in February 2015, the case initially began in 2015 when Mrs Owens petitioned for divorce from her husband, to whom she had been married to for 37 years. Mrs Owens had asked the court for permission to divorce her husband, on the grounds that his behaviour had forced their marriage to break down and that she could not realistically be expected to live with him. Mr Owens defended the divorce, leading the court to list a trial in the case on 15th January 2016.

His Honour Judge Tolson QC denied Mrs Owens’s wish to divorce her husband, dismissing her petition. He went on to suggest that the facts that she had relied uponto support her argument were nothing more than ‘minor altercations of a kind to be expected in a marriage’, but did state that she could not go on living with her husband.

After an appeal, the Court of Appeal upheld the judgement that had originally been made by HHJ Tolson QC, with Sir James Munby, the president of the family division, stating that the Court could not interfere with the decision that was made by the trial judge, commenting:

‘Parliament has decreed that it is not a ground for divorce that you find yourself in a wretchedly unhappy marriage, though some people may say it should be.’

Permission to appeal by the Supreme Court

Despite there being no official confirmation from the Supreme Court, the news of granted permission was broken by 1KBW as Philip Marshall QC acted on behalf of Mrs Owens in the Court of Appeal.

A statement on the 1KBW website stated:

‘Mr Marshall QC and his team will argue that the Courts’ emphasis on trying to find that a Respondent’s behaviour is in some way “unreasonable” is wrong. It will be argued that this is a “linguistic trap” and that the statute does not require unreasonable behaviour, but simply behaviour such that the petitioner cannot reasonably be expected to live with the respondent.’

Resolution, anational organisation for family lawyers had lodged written submissions to the Supreme Court, supporting the idea of giving permission to Mrs Owens to make an appeal. They identified specific arguments that should be considered in such an appeal, particularly on matters of principle. It is said that Resolution will now apply to be joined to the case as an intervener in the appeal.

The 'unreasonable behaviour' argument further underlines the need for a reform to divorce laws in England and Wales which are outdated and do not reflect today's modern society. There have been numerous calls for a 'no-fault divorce' system in England and Wales which would end arguments such as this and would allow couples to divorce without the need to assign blame to the other party or rely upon facts that are considered as 'unreasonable behaviour'.

The concept of 'no-fault divorce' is designed to reduce the conflict between partners when they separate asthe current system can create problems that do not need to exist, resulting in more tension between parties which can add more expense and lead to longer divorce proceedings.

If you are thinking about separation or divorce then K J Smith Solicitors can help. As a member of the organisation Resolution, K J Smith Solicitors will strive to deliver a positive outcome without conflict and in the most amicable way possible.

For more information or to arrange a free 45-minute consultation, please contact K J Smith Solicitors today on 01491 630000 (Henley on Thames), 020 7070 0330 (London), 0118 418 1000 (Reading), 01753 325000 (Windsor), 01256 584000 (Basingstoke) 01483 370100 (Guildford), 01494 629000 (Beaconsfield) or 01235 375500 (Abingdon).

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