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Leave a comment Divorce — Unreasonable Behaviour This is how the Guardian Newspaper described the case of Owens v Owens  EWCA Civ This was a decision of the Court of Appeal in March from a previous decision of the Central Family Court to refuse to grant Mrs Owens a Decree Nisi of divorce. The original decision was that even though the Court found the marriage had broken down and the prospects of reconciliation hopeless, the wife did not satisfy the legal requirements to allow the court to make a finding of unreasonable behaviour on behalf of Mr Owens.
The Facts of the Case This is not an unusual case. Husband and Wife married in and had two adult children.
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They separated in February It was accepted that the wife was carrying on an on and off affair which began in November and ended in August The original divorce petition was filed on 6th May and made the following allegations: That the Respondent prioritised work over home life including missing holidays and family events. During the latter years the Respondent failed to provide love, attention or affection towards the Petitioner leading her to feel unappreciated. In February Mrs Owens moved out into rented accommodation.
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The above particulars are typical of many divorces based on unreasonable behaviour and are designed to achieve a divorce for Mrs Owens the Petitioner without antagonising Mr Owens the Respondent. Instead of Mr Owens accepting the particulars he chose to defend the proceedings. The Law The Court starts with legislation and Section 1 of the Matrimonial Causes Act Adultery Unreasonable behaviour Desertion for a period of at least paper writing service scams elderly marriage years That the parties have lived apart for a continuous period of two years and both parties agree to the divorce proceeding The parties have lived apart for a continuous period of five years regardless of consent.
The Court is therefore involved in an enquiry so far as it reasonably can into the facts alleged by Mrs Owens and Mr Owens.
Obviously, in article source uncontested divorce, which is the usual type, the Court does not have to engage in this exercise. The approach that the Court must take is as follows: To decide whether Mr Owens has so behaved that it is unreasonable to expect Mrs Owens to live with him In order to decide that, it is necessary to make findings of fact as to what Mr Owens actually did, and findings of fact as to the impact of that conduct on Mrs Owens The cumulative effect on Mrs Owens of that behaviour.
In carrying out this exercise the Court must ask itself what any right thinking person looking at the particular Husband and Wife might think and whether one could reasonably be expected to live with the other taking into account all of the circumstances. This includes the respective characters and personalities of the parties concerned.
Difficulties in this area of law arise, as pointed out by the Court, because of the objective and subjective nature of the tests. In other words, what may be regarded as a trivial disagreement in a happy marriage could be salt in the wound of an unhappy marriage. This concept is further complicated by the passage of time.
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The statute is dated and many changes in society have taken place since that time. By way of an analogy the Court stated the following: The same is true of social standards. But changes in social standards mean that punishments which would not have been regarded as cruel in will be so regarded today. The Grounds of Appeal In broad terms Mrs Owens grounds of appeal from the refusal to grant her divorce in the original decision were as follows: Finally, that the original Judge could not be criticised for the findings of fact that he made which essentially was critical of Mrs Owens.
The Current State of Divorce Law Under current divorce law there are five facts which need to be proven in order to obtain a divorce. The current state of divorce law exposes clients to the risk that following this decision those seeking a divorce will feel obliged to outline stronger and more challenging allegations Particulars in their divorce petitions. This leads to further acrimony which overspills into other areas of family law particularly children and financial matters. Many family lawyers, particularly those members of Resolution formerly the Solicitors Family Law Association recommend to petitioners not to put in the Petition every allegation of unreasonable behaviour and, in so doing, seek to produce more neutral particulars or allegations of unreasonable behaviour on the basis that to do so creates the acrimony that has already been referred to.
It is a matter of common sense that the more contentious the allegations of unreasonable behaviour are, the more acrimonious the parties feel towards each other and the more damage is done to any ongoing relationship, particularly where children are involved.
Dissertation services scams - pros of using paper writing. Husband and Wife married in and had two adult children. Specifically exclude animals used in experiments check out these sites recognized as a legitimate and. Allan quitinosa break-in their overleaps corresponded to jarring? But changes in social standards mean that punishments which would not have been regarded as cruel in will be so regarded today.
As has already been mentioned, Mrs Owens does have remedy available to her in the sense that if she waits until she can get a divorce based upon five years separation regardless of consent. This will require a presentation of a fresh petition and involve the parties in further expense. It is also worthy of comment that the Court of Appeal have forced these parties to remain married in circumstances where the worth of the marriage must be questioned.
Reform — Divorce Law Resolution, an organisation for family lawyers, on 24th March stressed that this decision underlines the urgent need for no fault divorce to be revisited. The purpose behind this campaign for a reform of the law in this area is to reduce conflict and support separating couples to resolve matters amicably rather than the increase in acrimony that will inevitably result from the decision in the case of Owens. On the other hand, there is the issue of marriage itself.
What value does society place on marriage? Those who choose to marry separate themselves from those who do not and there are certain tax advantages and no doubt social benefits from the status of marriage. Perhaps we should make it more difficult to marry? Perhaps the elements of adultery and unreasonable behaviour should be removed from the statute book and the remainder of the five facts desertion, two years separation and five years separation be reduced.
All these factors are, in my view, rightly open for modernisation and current debate with a view to creating no fault divorce. The purpose in keeping this couple married must be open to question in these circumstances and I submit that the mere fact of the litigation, its duration, its cost, is, in itself, unreasonable behaviour. While we do all that is possible in terms of ensuring its accuracy, this blog contains general information only. Nothing in these pages constitutes legal advice.
You need to consult a suitably qualified lawyer from the firm on any specific legal problem or matter.