Tag: Owens v Owens

Mr Owens’ barrister: It takes two to make a marriage

Posted on October 25, 2018 by Merrick Solicitors - DIVORCE, RELATIONSHIPS

The barrister who successfully defended the year’s most high-profile divorce petition told Merrick Solicitors it took both spouses’ participation to make a marriage.

Nigel Dyer QC represented Hugh Owens in the Supreme Court when the UK’s highest court dismissed his wife Tini’s appeal against the lower courts’ refusal to grant her a decree nisi.

The landmark ruling prompted widespread publicity and renewed calls from family law solicitors for the introduction of ‘no fault’ divorce.

Mrs Owens’ petition relied upon her allegations about her husband’s behaviour to prove that she could not reasonably be expected to live with him and that the marriage had irretrievably broken down. But the Supreme Court agreed with both the original trial judge and the Court of Appeal in deciding that she had not sufficiently proved her case.

The Government subsequently opened a consultation on divorce law inviting submissions by December 10.

Mr Dyer, of London’s 1 Hare Court Chambers, said: “I think it’s difficult to see how a marriage can continue when one spouse refuses to participate in it.

“It’s got to be a consortium, and absent one party playing a role I don’t think that is a marriage.

Divorce reform necessary

“I do think divorce reform is necessary. The statute is outdated in contemporary society. It has its foundations in the matrimonial offences of the 19^th century.”

Asked for his view of the outcome in the Supreme Court judgment, he said: “The Supreme Court has made it clear that the current law has been misinterpreted for many years by practitioners and judges using the expression ‘unreasonable behaviour” when referring to a petition relying on section 1(2)b (behaviour) and looking to attribute blame.

“But as the Supreme Court explained section 1(2)(b) is conduct based rather than fault based, and the behaviour complained about does not have to have caused the breakdown of the marriage.

“I think there has been a lot of misconception in the interpretation and application of the law.

“For example, a government website giving the public advice about issuing a petition provided a commentary on section 1(2)b. This stated that in order to succeed on the fact of unreasonable behaviour you have to prove quite serious fault and gave the example of domestic violence.

Linguistic trap

“The point made in the Supreme Court is that in using the expression ‘unreasonable behaviour’, lawyers and judges fell into a ‘linguistic trap’. They saw the behaviour in terms of having to prove fault when this was not necessary.

“I think that over time this misconception became commonplace. Because there are very few contested divorces the lawyers didn’t have to think about what section 1(2)b actually meant when they filled in a divorce petition. No contested divorce case went to the House of Lords and it took the Supreme Court to provide judicial guidance.”

Contested divorce cases are rare. In the Court of Appeal the President of the Family Division said that of the 114,000 divorce petitions in 2016, only 800 answers were filed. He estimated around 0.015% – less than 17 – went to a final, contested hearing.

Mr Dyer has acted in just five such contested hearings in 35 years at the Bar.

He said: “Although the case of Owens caught the nation’s attention, in reality it is relevant to only a very small minority of cases.

“It was a big noise about a very small area of family law.”

The second part of this interview with Nigel Dyer QC covering the Government’s divorce law consultation will be published shortly.

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Five thoughts on ‘no fault divorce’

Posted on May 23, 2018 by Merrick Solicitors - DIVORCE

The highest court in the land – the Supreme Court – is considering its judgment in the case of Owens v Owens.

This high-profile and long-running case has provoked huge debate as it raises important questions about our divorce laws. Many in the legal profession believe the law is out of step with modern life and needs reforming.

In England and Wales since the 1970s, there is only one legal ground for divorce, which is that the marriage has irretrievably broken down.

The person who starts the proceedings must prove this by establishing one of five facts: adultery, unreasonable behaviour, desertion, two years separation with the other party’s consent, five years separation (no consent required).

Mrs Owens’ divorce petition has been contested by her husband – something that happens in only a small percentage of cases. The High Court and the Court of Appeal have rejected Mrs Owens’ claims. She has appealed to the Supreme Court in the hope of getting the divorce she wants.

Campaigners have highlighted the Owens case as proof the system needs to be changed. Otherwise, people in similar situations can find themselves trapped in a marriage they no longer wish to be in.

In approximately 60% of cases, the system relies on one party to blame the other for the marriage failure. Many have argued that it is time for ‘no fault divorce’.

Campaigners argue that marriages sometimes just run their course with no one party any more to blame than the other. And surely no one should be forced to stay in a marriage when they are unhappy?

The Supreme Court will deliver its verdict later in the year.

In the meantime, here are five points raised by the Owens case and the much talked of ‘no fault’ divorces.

Unnecessary conflict

Under the current system, the requirement to cite adultery or unreasonable behaviour can provoke unnecessary conflict in proceedings. Waiting two years isn’t always the best option when there are financial issues to be resolved too.
It may be that the marriage has just run its course. But unless the parties are prepared to wait the only option is for one to make allegations against the other. While in some cases this may seem like a means to an end, it frequently soon escalates when written allegations against a partner are prepared for submission to court. Many practitioners argue the system should move away from the confrontational, particularly if there are children.

The current system is hypocritical

Sir James Munby, when President of the Family Division, denounced the current law as “based on hypocrisy and lack of intellectual honesty”.
After ruling on Owens, he said couples must engage in “consensual, collusive, manipulation” of the law to gain a divorce.
This led to concern amongst family lawyers that the ruling would lead to couples making more lurid allegations against each other to ensure a divorce was granted. Research published last year by the Nuffield Foundation showed our divorce laws incentivise people to exaggerate claims of unreasonable behaviour or adultery to get a quicker divorce.

Sir James Munby said divorce law was based on hypocrisy

No fault divorce: Conciliation isn’t for everyone

For all the talk in the media and amongst the profession no-one yet knows what ‘no-fault’ divorce really means or how it will work. Is it to be an addition to our existing laws or a wholesale replacement? And what would that mean for those cases in which there has been conduct relevant also to the associated financial or children issues? Under current legislation the decree nisi acts as a finding of fact on the contents of the petition.

Man has been laying blame since the beginning of time. Adam blamed Eve and God for his fall from the Garden of Eden and Eve in turn looked to the serpent for encouraging her to take the forbidden fruit.
Conciliation isn’t for everyone and in some cases the blame game can provide its own form of catharsis. A blanket removal of the existing grounds for divorce may not provide the panacea that is expected.

Many in unhappy marriages look to divorce to give them a fresh start in life. They require the cathartic experience of being able to say why exactly their marriage failed. And, to put it bluntly, they want to name the party they believe was to blame. And also recite the poor treatment that resulted in their marriage irretrievably breaking down. To deny that experience could serve to cause more conflict (not less) when dealing with associated financial or children issues.

The Family Court is entrusted with a very wide discretion for a reason; because no one solution fits all. It’s a principle that perhaps should not be overlooked when deciding the part no fault divorce should play in modern day relationship breakdown.

The Supreme Court doesn’t make new laws

Those looking for a ruling in Owens v Owens to lead directly to a law change are very likely to be disappointed.
The Supreme Court’s president, Baroness Hale, has already said: “It is not the job of the courts to legislate – only Parliament can do that. Our job is to interpret law that Parliament has given us.”

Government action is therefore needed

Parliamentarians should be watching what is happening and getting ready to step in. Divorce law in England and Wales is out of step with our nearest neighbours Scotland, most other countries in Europe, and North America.
Despite numerous calls to change the law, successive governments have failed to do so. An attempt to introduce no-fault divorces in 1996 failed after it was described by the Government as unworkable. A Private Members Bill in 2015 failed to win backing, though Baroness Butler-Sloss has signalled her intention to try again.

Government inaction is possibly because they don’t want divorce to look too easy. But in the real world couples do split up. Surely there should be a mechanism to make sure, where both parties are agreed, unnecessary obstacles aren’t placed in the way, causing additional suffering for all concerned?

Family law reform in spotlight at Supreme Court

Posted on May 11, 2018 by Merrick Solicitors - CHILDREN, DIVORCE, RELATIONSHIPS

Court 1, The Supreme Court - Family law reform

Two cases with potentially far-reaching consequences for family law reform will be heard at the Supreme Court this week.

The hearings could shape the future look of divorce and civil partnerships.

Owens v Owens

The case of Owens v Owens underlines the need for no-fault divorce to finally be adopted in England and Wales.

Tini Owens claims she’s “locked in” to her marriage with farmer Hugh Owens which broke down after she had an affair. She filed for divorce, but Mr Owens represented himself and opposed the petition. Her request was denied.

Her appeal was rejected by the High Court and then the Court of Appeal. She was, however, given leave to appeal to the Supreme Court and this is due to be heard on Thursday.

Family lawyers group Resolution has been given permission to make representations, given the importance of the likely ruling.

Family law reform?

As the law stands, the requirement to allege adultery or unreasonable behaviour provokes unnecessary conflict. Reducing that hostility must be a better way forward and would assist in making divorce law fit for purpose.

Previously we looked at this from the all-important perspective of a child.

Currently, Mrs Owens is forced to stay in a marriage that she no longer wants to be in. She’s having to appeal to the highest court in the land to grant her wish.

Whether this case will lead to direct reform, only time will tell.

At the Court of Appeal, Sir James Munby ruled: “Parliament has decreed that it is not a ground for divorce that you find yourself in a wretchedly unhappy marriage, although some people may say it should be.”

Baroness Hale, President of the Supreme Court

And the President of the Supreme Court, Baroness Hale, said only last month: “It is not the job of the courts to legislate – only Parliament can do that. Our job is to interpret law that Parliament has given us.”

Hence, all eyes will be on the Supreme Court on Thursday.

That will follow a case at the start of the week with potentially far-reaching consequences for civil partnerships and co-habitees.

Steinfeld

Same-sex couples have had the right to enter into a civil partnership since 2005 and to marry since 2014. No such right to civil partnership exists for opposite-sex couples.

This omission has been challenged by Rebecca Steinfeld and Charles Keidan, a couple in a long-term relationship. They wish to formalise their arrangement but have an ideological objection to marriage, based on what they consider to be its patriarchal nature.

The couple sought a judicial review of the government’s decision not to offer civil partnerships to opposite-sex couples. Both the High Court and Court of Appeal ruled against them.

While the government has been looking at whether a change in the law is required, the couple are now to have their case heard by the Supreme Court.

At the heart of this is the truth that some co-habitees want a legally binding relationship other than marriage that affords protection in the event of a relationship breakdown or death.

Previously we explained the lack of legal protection for co-habitees and some of the myths surrounding their ‘rights’.

There are more than three million co-habiting couple families in the UK. Surely it is right that they have the option to choose a legal status right for their beliefs?

Court 1 of the Supreme Court will be the testing ground for reform.