The Defended Divorce: Reasonable Unreasonable Behaviour

The highly unusual decision in the recent case of Owens v Owens, has served as a reminder of the Respondent's right to defend a Petition for divorce, and the Court's power to reject a Petition based on unreasonable behaviour if it is not satisfied that the particulars of such behaviour meet the legal criteria.

There is one ground for divorce in England and Wales; the irretrievable breakdown of the marriage. However, this must be evidenced by one of five facts; adultery, unreasonable behaviour, two years' separation without consent, five years' separation with consent, or desertion. To proceed with a divorce on an immediate basis, the Petitioner must establish one of the three fault based facts, i.e. the Respondent's adultery, unreasonable behaviour or desertion. To divorce on a fact of unreasonable behaviour, the Applicant must identify 4-6 examples of such behaviour which satisfies the Court that the Respondent behaved in such an unreasonable manner that the Applicant finds it intolerable to live with them. Such examples often include the most recent and worst incidents.

The case of Owen involved a couple who married in 1978 and have two adult children together. During the marriage they amassed significant wealth and assets including a mushroom growing business turning over approximately £5 million per year. The couple had been living apart under the same roof for some years prior to the Wife pursuing a divorce, which included sleeping in separate bedrooms for a period of 7 years, until the Wife eventually moved out of the matrimonial home and into rented accommodation in February 2015. Mrs Owens, who admits to having an affair in 2012, sought to rely on examples of her husband's unreasonable behaviour to secure a divorce. Such examples included Mr Owen's prioritising his work commitments over his home life and making unpleasant and disparaging remarks about the Wife to family and friends. Mr Owen defended the Wife's request for a divorce on the basis that his behaviour was not unreasonable and that he wished to remain married.

The Judge who first heard the matter last year refused the petition on the basis that the husband's behaviour had not been unreasonable, and the incidents referred to were in fact 'altercations of a kind to be expected in a marriage'. He found the context and seriousness of the allegations to be exaggerated and commented that the husband's attitude was 'old school' as opposed to unreasonable. He further stated that...