Owens v Owens - Supreme Court dismisses Appeal

I edited my post to correct grammar but my comment about the standard advice being sexist is still there.

I don't know where you got your 50.7% figure, but I'll produce some ONS stats. In 2015, out of the cases where a Decree Absolute was granted, 62% were started by the wife. Further, 52% of wives filing for a divorce did so on UB grounds (and only 37% of husbands used UB as the grounds). ONS figures

So the large majority of respondents are male - 40% more in UB cases. And the standard advice to them is to roll over and play dead. I still call sexist.

You and I are in complete agreement on the issue of the big picture. Respondents should consider the wider implications - both on the cost side and the emotional side - of contesting a divorce. But the average solicitor can't give them the big picture. The average solicitor (like you people here) will simply advise them to not defend. They advise that not defending is the right option ...in every single case. That's wrong on so many levels.

Respondents need to consider carefully whether they have anything to gain by defending. I maintain that there often is much to gain! And when there is, one should defend.

It's a difficult decision, and complicated by the fact that emotions tend to run high, and it's a shame that there's not more open discussion about the bigger picture; all the advice around seems to summarise and generalise the best response as being 'roll over and play dead'.

>>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.

I completely get that. However, in many cases the petitioner (wife) uses her position of primary carer to take complete 'control' of the children and house. To me, that's more abusive! Too many fathers have had that happen to them. If you mount a defence, the potential costs and delay may help focus her mind a bit. Take comfort in the fact that you're not the aggressor here, you're DEFENDING.

But each case is different so, no, I'm not advocating that every respondent should defend. But I stand by my comments that everyone should look at the big picture and consider whether they have anything to gain by defending.

Yes, wives apply for divorces more often than husbands – which doesn’t actually tell you very much about the marriage - but we were talking specifically about defended divorces and RubyTuesday gave the source. There is nothing sexist in giving the same advice to wives and husbands who consider defending a divorce, and while I believe many aspects of the system and many providers of advice ARE sexist, I don’t believe Wikivorce is one of them and wouldn’t have anything to do with it if it were. Your belief that women's minds need focussing by men might be interpreted as a bit sexist!
I entirely agree with what RubyTuesday and Charles have said: no responsible person familiar with the Owens case could possibly advise a respondent to defend a divorce, there is no legally valid argument I am aware of for defending other than that the marriage has not irretrievably broken down (which no one disputes that it had in the Owens case). I’m happy to be corrected, but I don’t think you’ve made the case (unless I’ve missed a post).
I would add to the consequences of the Owens case that, following the criticism of the Supreme Court, additional court time will now have to be given to these cases. In the first hearing, only a day was allocated, but they may well now need to take three or more. This will delay these cases until a suitable gap is found in a court’s programme, and delay other cases.
I cannot for the life of me imagine what on Earth Hugh Owens gained, or thought he would gain, by defending. Tini Owens began the divorce process in June 2012, and the petition was issued in May 2015; it will finish in February next year. Mr Owens has delayed the divorce, but he cannot prevent it. The legal costs run up over the period must be immense, and there may still be disputes over the finances even when the divorce itself is finalised. He comes across – perhaps unjustly – as a cantankerous old bugger who was affronted that his adulterous wife sought to divorce him and decided to block it just to be difficult.
What has he achieved, other than a spouse who will probably never speak to him again, a spectacular waste of money and a great deal of very negative publicity? I cannot see any benefit to him in pursuing this course of action; there’s nothing tactical or strategic to be achieved; even Judge Tolson said he was deluding himself.
For the sake of balance, I don’t think there was much point in Mrs Owen’s appeal, either. The grounds of the appeal, that the law should for some reason be reinterpreted just for her, was bound to fail, and the Supreme Court dealt with that very briskly. The law, whatever one may think of it, is what it is and the judges have to apply it.

Forseti, you know what, I don't disagree with anything you've said about Mr or Mrs Owens. In his case there was little to be gained and yet he persisted and, as you say, it was probably because he's a cantankerous old git who was getting his own back at his wife for having an affair.

Or it's possible that he was just of the old fashioned opinion that oaths made "for better or for worse ... till death do us part" should be honoured in full.

But he seemed to have no advantage in defending. Or maybe he did achieve what he set out to achieve, we'll never know his full (or real) motivations.

Following the Owens case, judges will hopefully now recognise that their opinion that the marriage is irretrievably broken down is not sufficient grounds on which to grant the divorce ie. if the divorce is contested then the petitioner has to actually PROVE that the behaviour was such that no reasonable person could expect her to live with the respondent. That's a big deal. For too long judges have simply been rubber stamping petitions, even the rare contested ones.

The actual wording of Section 1 (2) is "The court hearing a petition for divorce shall not hold the marriage to have broken down irretrievably unless the petitioner satisfies the court ..."

Note the 'not'. The default position is that the divorce should be REFUSED unless x is proven. The burden of proof is on the Petitioner. For too long Respondents have been misled on this and given all kinds of fake information!

>>there is no legally valid argument I am aware of for defending other than that the marriage has not irretrievably broken down

Er, if you're contesting then, whatever your motivation, you need to insist that the marriage has NOT irretrievably broken down.

Yes, more defending will clog the courts up further. That's not the Defendant's problem! In fact, if the delays work to his advantage then there's all the more reason to go for a full defence. Bearing in mind that ancillary relief hearings will generally only follow the Decree Nisi, defending the divorce petition will have the effect of delaying AR hearings ...and that might work to the defendant's advantage in some cases.

That's one strategic reason for starters.

I don't believe Wikivorce is sexist, it's individual posters who are. Some aren't even aware of their casual, everyday sexism.

[img] CarltonS wrote:

Forseti, you know what, I don't disagree with anything you've said about Mr or Mrs Owens. In his case there was little to be gained and yet he persisted and, as you say, it was probably because he's a cantankerous old git who was getting his own back at his wife for having an affair.

Or it's possible that he was just of the old fashioned opinion that oaths made "for better or for worse ... till death do us part" should be honoured in full.

But he seemed to have no advantage in defending. Or maybe he did achieve what he set out to achieve, we'll never know his full (or real) motivations.

Following the Owens case, judges will hopefully now recognise that their opinion that the marriage is irretrievably broken down is not sufficient grounds on which to grant the divorce ie. if the divorce is contested then the petitioner has to actually PROVE that the behaviour was such that no reasonable person could expect her to live with the respondent. That's a big deal. For too long judges have simply been rubber stamping petitions, even the rare contested ones.

The actual wording of Section 1 (2) is "The court hearing a petition for divorce shall not hold the marriage to have broken down irretrievably unless the petitioner satisfies the court ..."

Note the 'not'. The default position is that the divorce should be REFUSED unless x is proven. The burden of proof is on the Petitioner. For too long Respondents have been misled on this and given all kinds of fake information!

>>there is no legally valid argument I am aware of for defending other than that the marriage has not irretrievably broken down

Er, if you're contesting then, whatever your motivation, you need to insist that the marriage has NOT irretrievably broken down.

Yes, more defending will clog the courts up further. That's not the Defendant's problem! In fact, if the delays work to his advantage then there's all the more reason to go for a full defence. Bearing in mind that ancillary relief hearings will generally only follow the decree nisi, defending the divorce petition will have the effect of delaying AR hearings ...and that might work to the defendant's advantage in some cases.

That's one strategic reason for starters.

I don't believe Wikivorce is sexist, it's individual posters who are. Some aren't even aware of their casual, everyday sexism.

You're right, Wikivorce isn't sexist, we support everyone who is experiencing divorce or separation. Stating that "individual posters" are sexist is a pretty serious accusation to make. If you have concerns about a member, or a post, you can use the report button to send in a user report, or send one of the moderation team a private message.

Nah, I'm not going to complain about people for having different opinions! Women deal with casual, everyday sexism in every walk of life. In divorce, it's men who have to deal with casual, everyday sexism. And this is not limited to comments by some posters in Wikivorce, it's everywhere.

Just a few comments:

You and I are in complete agreement on the issue of the big picture. Respondents should consider the wider implications - both on the cost side and the emotional side - of contesting a divorce. But the average solicitor can't give them the big picture. The average solicitor (like you people here) will simply advise them to not defend. They advise that not defending is the right option ...in every single case. That's wrong on so many levels.

Solicitors have a duty to their client to advise and they have a duty to the court as officers of the court.

This means that if a client were to say they wanted to defend the divorce merely for pencuniary advantage, as you have suggested, they would have to decline.

I completely get that. However, in many cases the petitioner (wife) uses her position of primary carer to take complete 'control' of the children and house. To me, that's more abusive! Too many fathers have had that happen to them.

The primary carer can take advantage of their position and there is still inequality with parents as the mother is often favoured over the father - all things being equal. Things will change over time particularly with the levelling which occurs in same-sex marriages where gender is not an issue that can feature.

If you mount a defence, the potential costs and delay may help focus her mind a bit. Take comfort in the fact that you're not the aggressor here, you're DEFENDING.

I'm not so sure. If you look at the reason for divorce, the Petitioner not wanting to be with the Respondent, the act of defending is very often an aggressive, controlling action.

Using the fight or flight analogy, the divorce petition is an act of flight and the defence is an act to block that flight.

Clearly there are instances where the petition is malicious, gold diggers spring to mind, or where the petition is used to alienate the respondent from the family/children by beginning the process of financial/physical separation. That aside, we get back to the position that most Petitioners simply find themselves in a marriage that has failed.

In the Owens case Mrs Owens wanted a divorce, and still does by all accounts. Mr Owens successfully blocked that divorce until at least early next year but at the cost of Mrs Owens happiness. Is that the action of a loving husband or a controlling estranged spouse?

Let me be charitable and say Mr Owens is a loving husband. You can love someone but you can't force them to love you.

This is why no-fault divorce has gained traction for quite some years. Sure, it's been slow but the current matrimonial law is embedded in the 60s and 70s. Times have changed and will continue to do so.

Charles

.Charles wrote:

Solicitors have a duty to their client to advise and they have a duty to the court as officers of the court.

Their primary duty is to the court, not the client. Many of their clients don't realise that.

.Charles wrote:

This means that if a client were to say they wanted to defend the divorce merely for pencuniary advantage, as you have suggested, they would have to decline.

Strictly speaking, that's not in the client's best interests. It may be to the court's advantage (saving court time) or anybody else's advantage but not to the advantage of the mug who is paying the fees.

.Charles wrote:

The primary carer can take advantage of their position and there is still inequality with parents as the mother is often favoured over the father - all things being equal. Things will change over time ...

Then let's have a different conversation when things change. Today's conversation is based on today's situation.

.Charles wrote:

Clearly there are instances where the petition is malicious, gold diggers spring to mind, or where the petition is used to alienate the respondent from the family/children by beginning the process of financial/physical separation.

Ah, you'd make exceptions in the above cases. We're making progress here! . What about if the Respondent *believes* the Petitioner is a gold digger or has alienated the children? (Petitioners who have alienated the kids are hardly likely to admit what they have done!)