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29 March 2017

23: A return to the bad old days?

Over 30 years ago Resolution, formerly known as the Solicitors Family Law Association (SFLA), was set up by a number of enlightened, forward thinking individuals. Resolution is now an organisation of 6,500 family lawyers and other professionals in England and Wales, who believe in a constructive, non-confrontational approach to family law matters.

Since its inception a cornerstone of membership of Resolution has been an adherence to its Code of Practice, which sets out the principles of a non-confrontational approach to family law matters. These principles are widely recognised and have been adopted by the Law Society as recommended good practice for all family lawyers. So Resolution members are committed to reducing and managing conflict and confrontation by not using inflammatory language. Ordinarily a divorce petition written in hostile terms would be an anathema to this.

The recent Court of Appeal judgment in Owens and Owens is, for many, therefore a cause for concern. Whilst the Court of Appeal may well have been correct to state that the original judge who heard the request by Mrs Owens for a divorce (which was refused) was correct the message it sends seems to hark back to the days when divorce petitions were routinely replete with hurtful and often extreme and numerous allegations of misconduct. Solicitors advising their clients on potential grounds for divorce may now start to lean towards more ‘meaty’ allegations to avoid finding their clients in a similar position to Mrs Owens.

It was accepted by the judge that the marriage between Tini and Hugh Owens had irretrievably broken down. Mrs Owens wanted a divorce based on an allegation that her husband had behaved in such a way that she could not reasonably be expected to continue to live with him. He disagreed.

The relevant provision of the Law Society Family Law Protocol states:

‘Where the divorce proceedings are issued on the basis of unreasonable behaviour, petitioners should be encouraged only to include brief particulars sufficient to satisfy the court and not to include any reference to the children’.

Accordingly, for many years it has been thought appropriate in most ‘run of the mill’ unreasonable behaviour cases to present the court with a series of reasonably anodyne, inoffensive examples of unreasonable behaviour deliberately worded so as to meet the test required to obtain a divorce but to go no further. In many cases attempts will be made to try and agree the precise wording of the allegations with the other spouse. It has been assumed, perhaps wrongly, that the test was not very high. As Sir James Munby said (in rather flowery terms):

‘The challenge for the divorce lawyers is therefore to draft an anodyne petition, carefully navigating the narrow waters between Scylla and Charybdis to minimise the risks that if the petition is too anodyne, it may be rejected by the court whereas if it is not anodyne enough, the respondent may refuse to co-operate. Since the former risk is probably very low in practice…many petitions are anodyne in the extreme’.

According to the official report the allegations that Mrs Owens sought to rely upon were fairly conventional. Had the matter proceeded undefended doubtless Mrs Owens would have got her divorce. Again, quoting Sir James Munby:

‘The petition in the present case is a good example; I cannot help thinking that, if the husband had not sought to defend, the petition would have gone through under the special procedure without any thought of challenge from the court’.

Unfortunately Mrs Owens decided to defend and the matter proceeded to trial. Such defended divorces are now very rare but when they occur the judge hears oral evidence and has to decide whether on the balance of probabilities the allegations are made out and if so whether the test to obtain a divorce is passed.

Sadly for Mrs Owens the judge decided that she was not entitled to her divorce.

The test mentioned above is a curious one; partly ‘objective’ and partly ‘subjective’. In considering what is reasonable the court will have regard to the history of the marriage and to the individual spouses. Allowance will be made for the sensitive as well as the thick-skinned and the conduct must be judged up to a point by reference to the victim’s capacity for endurance, and in assessing the reasonableness of the respondent’s behaviour the court will consider to what extent the respondent knew or ought reasonably to have known of that capacity. It is easy to see how the application of this test can cause problems.

The Court of Appeal stated that Judge Tolson was ‘unimpressed’ by Mrs Owen’s petition. Indeed apparently he went further finding that it was ‘hopeless’, ‘anodyne’ and ‘scraping the barrel’. He described the allegations ‘at best flimsy’. He stated that he was ‘satisfied that the wife had exaggerated the context and seriousness of the allegations to a significant extent. They are all at most minor altercations of a kind to be expected in a marriage’.

This case is another example of the Court of Appeal finding that it is not appropriate for the appeal court to interfere with the findings of fact of the judge who had the benefit of hearing evidence. The appeal court will only interfere with findings of fact where there has been a critical finding of fact which has no basis in the evidence, or a demonstrable misunderstanding of relevant evidence or a demonstrable failure to consider relevant evidence or if satisfied that the decision cannot reasonably be explained or justified. Moreover it is not the function of the appellate court to strive by mental gymnastics to find error in a decision. The concern of the court ought to be substance, not semantics.

Accordingly, whilst expressing sympathy for Mrs Owens’ predicament, the members of the Court of Appeal felt unable to come to her assistance and reverse the earlier decision.

The fear is that the court’s refusal to grant Mrs Owens a divorce will send a message that it is preferable to include harsher allegations (and possibly also more offensive ones) in a divorce petition – it is not known if Mrs Owens could have done so.

For many years Resolution and other organisations have called for the introduction of ‘no fault’ divorce. The idea is that, where a marriage has clearly broken down, one spouse should be able to obtain a divorce without needing to wait for a period of separation to have elapsed and without needing to blame the other for adultery or unreasonable behaviour.

In fact, there was a failed attempt to introduce such ‘no fault divorce’ a decade ago. This was provided for by Part II of the Family Law Act 1996 but that was never brought into force and it was eventually repealed by Section 18 of the Children and Families Act 2014.

Nigel Shepherd, the Chair of Resolution, has said ‘At Resolution we have long campaigned for reform in order to reduce conflict and support separating couples to resolve matters amicably…This is why we are today repeating our call on the Government to change the law and introduce no-fault divorce. The reasons for marriages breaking down are often complex and rarely will spouses agree on them’.

It is unclear when, or if, the law will be changed. Last month the government confirmed it had no current plans to change existing legislation but that it was considering what further reforms to the family justice system may be needed.

The present law allows a couple to live apart for a period in excess of two years and then obtain a divorce by consent. But what of a couple whose marriage has clearly broken down but for one reason or another do not wish to wait? What if the consent of the other spouse is not forthcoming? Almost inevitably that leads to a discussion about the possibility of alleging unreasonable behaviour to obtain a divorce. In the vast majority of such cases, the divorce goes through undefended but unnecessary ill-feeling is engendered. To return to the judgment of Sir James Munby:

‘The simple fact, to speak freely, is that in this respect the law which the judges have to apply and the procedures which they have to follow are based on hypocrisy and lack of intellectual honesty. The simple fact is that we have, and have for many years had, divorce by consent, not merely in accordance with section 1(2)(d) of the 1969 Act but, for those unwilling or unable to wait for two years, by means of a consensual, collusive, manipulation of section 1(2)(b)’.

It is hoped that in future judges will not need to exercise such hypocrisy or lack of intellectual honesty and further that it will not be necessary for people like Mrs Owens to have to err on the side of caution by including in their petitions hurtful and harsh allegations so as to ensure that the threshold is crossed.

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