Owens v Owens

The recent judgement Owens v Owens [2017] EWCA Civ 182 has caused divorce lawyers to look twice at their drafting.  When drafting a statement of case on a petition for unreasonable behaviour one might assume that five or six points about the Respondent’s behaviour would suffice in convincing the Judge that the marriage has broken down irretrievably. 


Unfortunately, for Mrs Owen’s, although her petition was adequately drafted by the usual standards, it was challenged by her Husband who sought to defend the case. He did not agree that the marriage had broken down and wished to remain married.


This is unusual to say the least.  As expressed by the President of the Family Division, by the year to January 2017, there were 113,996 petitions for divorce and during the same period a notice of intention to defend was given in some 2,600 acknowledgements of service (2.28%) with only 0.67% taking it forward and filing an answer at court.  Mr Owens was therefore one of a mere handful. 


In delivering the lead judgement the President accepted that the everyday realities for solicitors drafting such petitions are different from the requirements set down by the law.  It states that a petition based on unreasonable behaviour should include the first, worst and last incidents to be relied on.  The Court must evaluate whether the parties can reasonably be expected to live together considering the evidence.  In this case even though Mrs Owens amended her petition to add further behaviour particulars, the Court did not agree, on the evidence, that the she had satisfied the required standard.


Mrs Owens intends to appeal the decision made, however, this case may serve as a reminder that a statement of case for unreasonable behaviour must be carefully considered to meet the relevant standards required by the court. 


Despite this, the statement of case should not be a character assassination of the Respondent, and if possible can be agreed in advance between the parties.  It is also worth noting that the statement can be added to should the Respondent decide to take the unusual route of defending the case.


If you are thinking about separation, or divorce, please contact Elaine Flynn on 01227 206142 for advice and assistance.

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