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Supreme Court to hear that courts’ approach to ‘unreasonable behaviour’ petitions is wrong

Resolution welcomes Supreme Court's decision to allow Mrs Owens to appeal

Mrs Tini Owens has been granted permission to appeal to the Supreme Court against the decision of the Court of Appeal in her much-publicised defended divorce suit.

The case started in 2015, with Mrs Owens petitioning for a divorce from her husband of 37 years. Mr and Mrs Owens married in 1978 and Mrs Owens moved out of the family home in February 2015.

Mrs Owens asked the court to grant her a divorce on the ground that the marriage had irretrievably broken down and alleged in support that Mr Owens's behaviour was such that she could not reasonably be expected to live with him. Mr Owens defended the divorce and the Court listed a trial in the case on the 15th January 2016. By that stage, the parties had been separated for 11 months.

In his judgment, His Honour Judge Tolson QC refused to grant Mrs Owens a divorce and dismissed her petition. The judge did find that Mrs Owens could not go on living with her husband but said that the facts that Mrs Owens relied on to seek her divorce were "minor altercations of a kind to be expected in a marriage".

On appeal, the Court of Appeal upheld the judgment of HHJ Tolson QC, with the President of the Family Division saying that the Court could not interfere with the decision of the trial judge and remarking:

"Parliament has decreed that it is not a ground for divorce that you find yourself in a wretchedly unhappy marriage, though some people may say it should be."

Philip Marshall QC, Stephen Jarmain and Millicent Benson, all of 1 King's Bench Walk (instructed by Simon Beccle and Charlotte Skea-Strachan of Payne Hicks Beach), will argue that the courts' emphasis on trying to find that a respondent's behaviour is in some way "unreasonable" is wrong. It will be argued that this is a "linguistic trap" and that the statute does not require unreasonable behaviour, but simply behaviour such that the petitioner cannot reasonably be expected to live with the respondent.

Resolution lodged written submissions with the Supreme Court in support of the grant of permission to appeal to that court, identifying certain arguments on matters of principle that it was suggested should be considered in such an appeal. Those submissions were drafted by James Turner QC and Deepak Nagpal of 1 King's Bench Walk (instructed by Nicola Rowlings of Mills & Reeve). Resolution will now be applying to be joined to the case as an intervenor in the substantive appeal. Resolution has campaigned for the introduction of "no fault divorce" in England and Wales.

Nigel Dyer QC of 1 Hare Court and Hamish Dunlop of 3PB (instructed by Hughes Paddison) acted for Mr Owens in the Court of Appeal.

Commenting on the decision to allow Mrs Owens to appeal the decision, Nigel Shepherd, National Chair of Resolution, said:

"Resolution supported Mrs Owen's application to appeal so welcome the Supreme Court's decision to hear her case which has significant implications for the future of divorce law in England and Wales.

"In today's modern society, it should not be the case that someone is being forced to stay in a marriage she does not want to be part of, and is now having to go to the highest court.

"Mrs Owens' case highlights why divorce law in the UK needs to change. We need to reduce conflict and support separating couples to resolve matters amicably, rather than forcing them to play a blame game where one or both of them thinks the marriage is over. The simple fact is that this case should not have been necessary, and only by implementing a no-fault divorce system can we ensure such a situation doesn't happen again.

"Support for no-fault divorce is growing, from family law professionals, the public and politicians. Whether it's before or after the case is heard by the Supreme Court, the Government needs to take urgent action to bring our outdated divorce laws up to date and ensure that Mrs Owens' experience is not repeated."

For the Court of Appeal judgment, click here.

9/8/17 (supplemented 10/8/17)