Family Lawyers & Mediators in Brighton
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Impact of the Supreme Court Owens Divorce Case

We are sure you have all noticed the extensive press coverage of the case of Tini Owens and Hugh Owens following the recent Supreme Court Judgement.

The brief background to this case is that Mrs Owens petitioned for divorce as she felt that her marriage to Mr Owens had irretrievably broken down. Mrs Owens relied on s1(2)(b) of the Matrimonial Causes Act 1973 to evidence the irretrievable breakdown of the marriage, namely that Mr Owens had behaved in such a way that Mrs Owens cannot reasonably be expected to live with him.

The case was heard before the High Court who refused to allow the divorce to proceed. Mrs Owens then appealed to the Court of Appeal and the Supreme Court and her appeals were denied.

From the Key excerpts from the judgment of the Supreme Court you will note that this was not an easy decision for the Supreme Court, however they are tasked with enforcing the law of the country and not to change the law:

(Lord Wilson, Paragraphs 42-43) “There is no denying that the appeal of Mrs Owens generates uneasy feelings: an uneasy feeling that the procedure now conventionally adopted for the almost summary despatch of a defended suit for divorce was inapt for a case which was said to depend on a remorseless course of authoritarian conduct… But uneasy feelings are of no consequence in this court, nor indeed in any other appellate court.”

(Lord Wilson, Paragraph 45) “Parliament may wish to consider whether to replace a law which denies to Mrs Owens any present entitlement to a divorce in the above circumstances.”

(Lady Hale, Paragraph 46) “I have found this a very troubling case. It is not for us to change the law laid down by Parliament – our role is only to interpret and apply the law that Parliament has given us.”

This means that Mrs Owens has to wait until 2020 when she can amend her divorce petition and seek to evidence the irretrievable breakdown of the marriage due to the parties being separated for 5 years – at this point, Mrs Owens does not require Mr Owens consent to a divorce.

In practical terms, nothing has changed on a day to day basis save that when drafting the divorce petition, it would appear to be good practice to focus more on why the Petitioner finds it unreasonable to live with the Respondent as opposed to focusing on the Respondent’s behaviour – the test in law is NOT unreasonable behaviour.

We are members of Resolution, an organisation of 6,500 family justice professionals in England and Wales, who believe in a constructive, non-confrontational approach to family law matters. We follow their good practice guidance which includes sending a draft of the divorce petition to the Respondent to try and seek agreement to the contents of the same to avoid a contested/defended divorce. This is to try and keep matters amicable for all involved and to avoid tensions becoming heightened. The current divorce laws create unnecessary conflict between divorcing couples which impacts on the arrangements for the children and financial matters which cannot be right. It is difficult for the lay Person to be told that conduct is not relevant in financial proceedings when a divorce is based on “fault” and when all professionals in family work agree that it is in the interests of in particular the children to reduce conflict and acrimony.

Resolution is continuing its campaign for no-fault divorce and a Private Members Bill prepared by Dame Butler Sloss is currently before parliament for consideration.

 

We offer an initial one hour consultation at £100.00 plus VAT to advise you about the applicable law and possible outcomes, the various ways your case could be funded and provide an estimate of the costs involved.  This includes a letter to you to confirm the advice given during the appointment.

Legal Aid for Mediation
From 3rd November 2014 legal aid is available to fund both the MIAM and the first session of mediation where one of the people involved qualifies for legal aid.

 

For further information see Legal Aid Changes for Mediation , Family Mediation in Brighton and About Family Mediation.
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