Hughes Paddison in major Court of Appeal divorce case

Hughes Paddison represented the husband in the widely reported Divorce case of Owens v Owens heard by the Court of Appeal recently. The case was notable in that the Court of Appeal refused to overrule the judge hearing the case last year when he had dismissed the wife's petition for a divorce. To get behind the headlines Jane Brothwood, Family Law Director at Hughes Paddison spoke with Peter Jackson our Consultant Solicitor who handled the case  about the significance of the decision.

Jane:

First of all, Peter, why did this case make the headlines?

Peter:

This was a defended divorce case which these days is incredibly rare. There are over 100,000 divorces each year. The overwhelming majority of these are uncontested. Because divorce is still a legal process the party seeking to end the marriage, the Petitioner, must satisfy the court that he or she is entitled to a divorce in accordance with the current law. Where the parties agree, or where the other party, the Respondent, chooses not to contest the matter then most divorces go through “on the  nod”.

Jane:

The Petitioner must show that the marriage has irretrievably broken down.

Peter:

Yes, that's right. In addition, unless the parties have been living apart for a particular period the Petitioner must show that the Respondent is at fault. The two most common types of allegation are that the Respondent has committed adultery or that the Respondent has behaved in such a way that the Petitioner cannot reasonably be expected to continue living with him or her.

Jane:

And what was this case based on?

Peter:

The wife alleged that the marriage had irretrievably broken down and that the husband’s behaviour was such that she could not reasonably be expected to continue living with him. My client did not accept that the marriage had broken down. Nor did he accept the allegations of unreasonable behaviour.

As was his prerogative, when it became clear that his wife intended to pursue the divorce he indicated that he would contest it.

Jane:

And so it went to a full hearing in court?

Peter:

Yes. The first hearing took place at beginning of last year. The Court’s job was to examine the wife's allegations and to decide whether, on the basis of the  findings of the judge, she could not reasonably be expected to live with her husband.

Jane:

And what did the judge decide?

Peter:

The Judge concluded that the wife's allegations were “flimsy”. He was satisfied that the wife had exaggerated the seriousness of her allegations against her husband to a significant extent. He described the incidents that she had relied on as "at most minor altercations of kind to be expected in marriage”. Consequently, he refused the wife's application for a divorce.

Jane:

But it didn't end there?

Peter:

No. The wife and her lawyers appealed to the Court of Appeal. Ironically, the appeal was heard on St Valentine's Day this year. It involved a full day of legal argument before the President of the Family Division sitting with two senior Appeal Court judges. Both the husband and the wife engaged QCs to argue their cases.

Jane:

What was the basis of the wife's appeal?

Peter:

The wife's QC argued that the first judge had been wrong to deny the wife a divorce. Part of the argument was technical. There had been 27 allegations of behaviour in the petition and although it had been agreed that not each and every allegation that would be considered the majority of them were examined at the initial trial. In his written judgment the first judge had referred only to a few of these allegations. The wife's QC criticised him for that that. It was also argued that however serious or otherwise the individual allegations of behaviour may have been, it was the cumulative effect of the allegations which should be considered.

Jane:

And how did the Court of Appeal deal with that?

Peter:

The Court started off by reminding us that unless the original judge is plainly wrong when coming to the conclusion he does then the Court of Appeal will only interfere with his findings of fact if it is satisfied that his decision cannot reasonably be explained or justified. The Appeal judges then went on to consider a transcript of the original trial and the first judge’s written judgment.     

Jane:

Since the wife's appeal failed I presume the Court of Appeal was satisfied that the judge who heard the wife's case for divorce was entitled to reach the decision he did when rejecting her petition. Were there any other grounds for appeal?

Peter:

Yes, all the wife’s grounds for appeal were rejected, including a claim that to deny the wife a divorce under the current law would be a breach of her human rights under the European Convention of Human Rights. In essence it was argued that since the Convention protects a right to marry that implies a right to remarry and, by extension, a right to divorce. The Court of Appeal, in rejecting this argument, pointed out that a similar submission had already failed before the European Court.

Jane:

What else did the Court of Appeal say?

Peter:

The Court made it clear that its job was to state the law and not to make the law. It was Parliament’s job to make the law. The President, in reminding everyone that we still have a divorce law which is still heavily reliant upon showing one of the parties being at fault in some way, asked whether our current divorce law is suitable for this day and age. As you will know, Jane, there are many who feel that an overhaul of the law of divorce is long overdue and that a law of "no-fault" divorce should be introduced. Indeed, you will remember that the 1996 Family Law Act provided for exactly that. However that legislation was never brought into force and the Act itself was quietly repealed in 2014. The outcome of this case has already led to demands that the law of divorce should be looked at again.

Jane:

What lessons can we learn from this case for all of our Family clients?

Peter:

Whether our client is the one seeking a divorce, or is a reluctant party to divorce proceedings, or indeed if our client is in agreement to a divorce taking place, it is essential that sound legal advice is sought at an early stage to ensure the most favourable outcome. The President of the Family Division commended the approach of the association of Family Law lawyers known as “Resolution”. There are of course a number of Resolution lawyers in the family department here at Hughes Paddison.

Jane:

Thank you, Peter. We shall wait to see whether the government decides to take another look at the law in this area.