Owens v Owens - Supreme Court dismisses Appeal

You are wrong.

It is not the behaviour of the respondent that needs to be unreasonable, but that the respondent has behaved in such a way that it would be unreasonable to expect the petitioner to remain in the marriage.

As Lady Hale (the highest ranking Judge in the UK) said recently, "The courts scrutiny is thorough but primarily an administrative process, not a judicial inquiry into the truth, and is no longer done by Judges. The threshold of what will be accepted as behaviour if the petition is not defended has dropped. The courts take the pragmatic stance that if one party has decided that the marriage is over them that is the reality."

There is no burden of proof requirement for the petitioner if the respondent does not contest or defend the divorce application.

I have seen countless petitions in my job, some which I would consider as having fairly weak (ie the respondent not putting enough sugar in the petitioner's tea) have been accepted by the court and the divorce granted. The bar is actually set quite low. Often it is a balancing act between a statement of case that will be accepted by the court and that won't aggreive the respondent too much.

What you are describing is what you would like the law to be, not what it actually is in legislation and practice.

rubytuesday wrote:

You are wrong.

It is not the behaviour of the respondent that needs to be unreasonable, but that the respondent has behaved in such a way that it would be unreasonable to expect the petitioner to remain in the marriage.

Er, I did not claim otherwise

And the litmus test is whether the man on the Clapham omnibus / Boris bus would consider it unreasonable to expect the Petitioner to live with the Respondent. It's not whether the Petitioner thinks it's unreasonable (as you would have us believe)!

rubytuesday wrote:

There is no burden of proof requirement for the petitioner if the respondent does not contest or defend the divorce application.

Er, I've already said that.

rubytuesday wrote:

What you are describing is what you would like the law to be, not what it actually is in legislation and practice.

Tell that to Mr Owens, the person whose case we are discussing here and which case is going to act as a precedent in future defended divorces.

CarltonS wrote:

rubytuesday wrote:

You are wrong.

It is not the behaviour of the respondent that needs to be unreasonable, but that the respondent has behaved in such a way that it would be unreasonable to expect the petitioner to remain in the marriage.

Er, I did not claim otherwise

And the litmus test is whether the man on the Clapham omnibus / Boris bus would consider it unreasonable to expect the Petitioner to live with the Respondent. It's not whether the Petitioner thinks it's unreasonable (as you would have us believe)!

rubytuesday wrote:

There is no burden of proof requirement for the petitioner if the respondent does not contest or defend the divorce application.

Er, I've already said that.

You also said this previously:

So, unless a case is proceeding undefended, it falls on the Petitioner to prove their case to the satisfaction of the court. If they can't prove that the BEHAVIOUR was the cause of the marriage breaking down then it doesn't matter how irretrievably broken down the marriage is - the Petitioner is not entitled to a divorce.

The burden of proof rests with the Petitioner and it is a higher barrier than we are routinely led to believe by posts on this forum or utterances by the average family lawyer.

I think you've become rather confused somewhere along the line...

Not at all, but you're flogging a dead horse so I'm not going to bother arguing the toss with you. As I've explained in my PM reply to your question about where I've been getting case decisions that others haven't been able to get - I've got access to expensive subscription services that the top UK legal firms use.

I also have access to high level commentary and discussion on this particular case and its implications.

rubytuesday wrote:

I have seen countless petitions in my job, some which I would consider as having fairly weak (ie the respondent not putting enough sugar in the petitioner's tea) have been accepted by the court and the divorce granted.

The weakness of any petition that succeeded is irrelevant if the case wasn't contested. So trying to use that as an argument that UB cases are rubber stamped and there is no point in defending is ... dishonest.

I'll let readers make their own minds up as to whether the Owens vs Owens case blows out of the water the nonsense gospel on these boards about the futility of defending a UB petition (yeah, I called it a UB petition for short so be pedantic if you want and explain why that's a misnomer!)

From a logical point of view there is no point in defending a divorce as the petitioner clearly no longer wishes to remain with the respondent. Why would the respondent want to force a person who no longer wants to be with them, to be with them?

There is a catch 22 situation with defended divorces. The trial of the issue leads to more animosity between the parties and worsens a situation which was already bad enough that one person issued a legal documents to formally end the marriage. It follows that if the divorce is successfully defended, the relationship between the parties is worse that if the petition had been accepted.

The cost is also a major factor. Most defended divorces are abandoned or are unsuccessful. The financial cost is huge as with the Owens case. The parties are both losers in that respect (the winner would normally receive a contribution to their costs from the loser but as the costs are derived from a common fund, the matrimonial pot, it is an own goal in that respect).

Getting back to the Owens case the defence was a delay rather than a success as Mrs Owens can petition for divorce based on 5 years separation.

All a bit pointless really.

Yes, the traditional thinking is that there is no point in defending and that it is illogical.

I suggest Respondents think again.

There can be numerous good reasons to defend. The Respondent may know that the Petitioner is acting impetuously, for example.

Even if that isn't the case, there may be numerous strategic advantages to defending particularly where the Petitioner is using lawyers and running up a big bill and the Defendant is capable of being an LiP (BTW, LiPs can, in some cases, get 2/3 of the costs that a lawyer would have charged for that same work! CPR 1998 r 46.5)

There are negotiating advantages to defending if the Petitioner is in a hurry and/or wants to remarry.

I can think of half a dozen other circumstances in which it makes sense to defend.

All the talk on this board dissuading Respondents is, AFAIAC, sexist and, further, outdated now (given Owens vs Owens).

As I've said earlier, sorry .Sylvia who tried to argue that there's something exceptional in the Owens case, there aren't any exceptional circumstances in the Owens case. For many petitioners the worst 'behaviour' allegations they can come up with are way, way below those that Mrs Owens had. Respondents in these cases now have a higher chance of winning if they mount a proper defence.

Forseti's argument suggesting that the Owens case may not set a precedent also looks like it's come from someone desperately trying to hold on to status quo.

But I've not heard any argument as to WHY the Owens case is not a valid precedent. It is. And it does change the odds!

Defendants should now consider carefully what they have to gain or lose by defending. If their solicitor blindly advises them that there's no point in defending, my advice to them is to sack the solicitor and find somebody who can take a broader and more strategic view of their individual circumstances and advise accordingly.

Yes, you're right in that ultimately Mrs Owens will get her divorce, but five years is a long time and there will be at least a few Petitioners who will make major concessions to their demands in exchange for a non-contested, quick divorce.

IMO, Respondents shouldn't easily give up their legal right to defend before considering whether that cooperation can be traded against something. So, first, put in a defence, pay the fee and show the Petitioner you're serious about defending.

CarltonS wrote:

Yes, the traditional thinking is that there is no point in defending and that it is illogical.

I suggest Respondents think again.

There can be numerous good reasons to defend. The Respondent may know that the Petitioner is acting impetuously, for example.

Even if that isn't the case, there may be numerous strategic advantages to defending particularly where the Petitioner is using lawyers and running up a big bill and the Defendant is capable of being an LiP (BTW, LiPs can, in some cases, get 2/3 of the costs that a lawyer would have charged for that same work! CPR 1998 r 46.5)

There are negotiating advantages to defending if the Petitioner is in a hurry and/or wants to remarry.

I can think of half a dozen other circumstances in which it makes sense to defend.

All the talk on this board dissuading Respondents is, AFAIAC, sexist and, further, outdated now (given Owens vs Owens).

As I've said earlier, sorry .Sylvia who tried to argue that there's something exceptional in the Owens case, there aren't any exceptional circumstances in the Owens case. For many petitioners the worst 'behaviour' allegations they can come up with are way, way below those that Mrs Owens had. Respondents in these cases now have a higher chance of winning if they mount a proper defence.

Forseti's argument suggesting that the Owens case may not set a precedent also looks like it's come from someone desperately trying to hold on to status quo.

But I've not heard any argument as to WHY the Owens case is not a valid precedent. It is. And it does change the odds!

Defendants should now consider carefully what they have to gain or lose by defending. If their solicitor blindly advises them that there's no point in defending, my advice to them is to sack the solicitor and find somebody who can take a broader and more strategic view of their individual circumstances and advise accordingly.

Yes, you're right in that ultimately Mrs Owens will get her divorce, but five years is a long time and there will be at least a few Petitioners who will make major concessions to their demands in exchange for a non-contested, quick divorce.

IMO, Respondents shouldn't easily give up their legal right to defend before considering whether that cooperation can be traded against something. So, first, put in a defence, pay the fee and show the Petitioner you're serious about defending.

The Owens v Owens case is exceptional in that it is the only defended divorce case to reach the Supreme Court. I agree with Forseti in that the case is very unlikely to set a precedent - the effect of the case is that statement of cases based on "unreasonable behaviour" are more likley to contain stronger wording and more extreme examples to ensure the petition isn't rejected.

Yes, absolutely, respondents should retain the right to defend or contest, otherwise divorce becomes unilateral, which is dangerous and will affect the more vulnerable spouses such as those who are in an abusive relationship. However, the big picture needs to be looked at when thinking about defending a divorce - what will it actually achieve, what is the cost to the parties and thier children (both monetary and emotional), what impact will defending have on future discussion relating to finances and children, and what does the respondent stand to gain in mounting a defence?

You wrote: "For many petitioners the worst 'behaviour' allegations they can come up with are way, way below those that Mrs Owens had. " - how can you say that with any authority unless you have read a great number of petitions?

You've edited your post since I first read it last night, in it you said the advice to not defend was "sexist" - no it's common sense. Male petitioners in an Answer case are only just in the majority, in the report No Contest - Defended Divorce in England & Wales by Trinder and Sefton, they found that 50.7% of respondents in an answer case are male. So the split between male and female respondents in Answer cases is as just about even as it can get. The advice to not defend would be given regardless of gender.

The problem with actively defending a divorce is that it creates further hostility between the spouses, leading to problems when seeking to resolve the finances and child arrangements, and may result in a complete breakdown of communication and relationships between not just the spouses, but children and a parent too.
It is wholly irresponsible to encourage respondents to defend a divorce based on the premise that you think it's a good idea. Any idea of using it as a tactical manoeuvre to prevent a spouse from moving on with their lives strikes me as controlling and borderline abuse.

As Charles said in his post, it's all a bit pointless really.