Controversial Divorce Case Reaches Supreme Court

The highly publicised contested-divorce case, Owens v Owens, has now been heard by the UK’s Supreme Court.

Facts of the Case

The English case concerns Tini and Hugh Owens, who married in 1978 and separated in February 2015.

In May 2015 Mrs Owens filed for divorce, claiming that their marriage had irretrievably broken down – a necessary requirement for divorce in England and Wales. There are five possible reasons that can be given for this breakdown:

  • Adultery
  • Unreasonable Behaviour
  • Desertion
  • Separation for over two years, if both partners agree
  • Separation for at least five years, even if one partner disagrees

Mrs Owen claimed that their marriage had irretrievably broken down as a result of her husband’s behaviour, which she said was unreasonable enough to mean she could not reasonably be expected to live with him within the meaning of s 1(2)(b) Matrimonial Causes Act 1973. She gave examples of his behaviour in support of her claim, including occasions where the husband was alleged to have made disparaging or hurtful remarks to her in front of third parties.

However, Mr Owen contested the divorce, claiming that their marriage had not broken down irretrievably. He argued that the examples given of his behaviour given by Mrs Owen were not sufficient to satisfy the requirements of the Act.

The judge hearing the case at the Court of Appeal agreed with Mr Owen and dismissed the petition. Mrs Owens appealed this decision to the Supreme Court, which heard the case on 17th May. We await their ruling with great interest.

Calls for No-Fault Divorce

The case has led to renewed calls for the introduction of no-fault in divorce in England and Wales. Campaigners say the current system, which relies on one spouse proving unreasonable behaviour on the part of the other, creates unnecessary conflict and bad feeling amongst divorcing couples.

Family law organisation, Resolution, which has long campaigned for no-fault divorce, has been given permission to intervene in the case on Mrs Owen’s behalf, arguing that the current law can be applied in a way that allows her the divorce she is seeking. However, the organisation claims that irrespective of the outcome in the Supreme Court, the law should be changed to avoid such cases coming before the courts in the future.

Increased Conflict and Confrontation

It recently conducted a survey amongst family lawyers, which found that 90% agreed the current law makes it harder for them to reduce conflict and confrontation between clients and their ex-partners.

The survey also found:

  • 67% said the current law makes it harder for separated parents to reach an amicable agreement over arrangements for children.
  • 80% believe the introduction of no-fault divorce would make it more likely for separated couples to reach an agreement out of court.
  • 60% have experienced lawyers drafting more aggressive petitions than before the Court of Appeal judgment in Owens v Owens.

Resolution highlights that in 2016, more than half of all divorce petitions were submitted on the basis of adultery or behaviour – meaning over 60,000 people apportioned blame to their ex-partner for the relationship breaking down.

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Contains public sector information licensed under the Open Government Licence v3.0.

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Digital Divorce Application Process Rolled Out

A fully digital divorce application process has now been rolled out across England and Wales from 1st May 2018.

The online service offers prompts and guidance to assist people in completing their application, and uses clear, non-technical language. The whole process can be completed online, including payment and uploading supporting evidence.

During the testing phase conducted before the full roll out, more than 1,000 petitions were issued through the new system, with 91% of people saying they were satisfied with the service.

Court staff currently spend 13,000 hours dealing with complex paper divorce forms, but this simpler and less technical online service has already contributed to a 95% drop in the number of applications being returned because of mistakes, when compared with paper forms. This means only 0.6% of forms have been rejected since January.

“Allowing divorce applications to be made online will help make sure we are best supporting people going through an often difficult and painful time,” commented Justice Minister Lucy Frazer.

“More people will have the option of moving from paper-based processes to online systems which will cut waste, speed up services which can be safely expedited, and otherwise better fit with modern day life,” she added.

These changes are part of £1 billion programme to transform the court system – making it quicker, more accessible and easier to use for all. Other examples of the Government’s court reforms include:

  • A digital system which makes it quicker and easier for people to claim money owed, resolve disputes out of court and access mediation.
  • A new service which allows people to submit their tax appeals online – drastically cutting the number of applications being returned as incomplete or inaccurate.

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Couples in Dispute over Divorce Jurisdictions

When couples who live an international life-style take the decision to separate, the question of which county’s court system should hear their divorce can sometimes become hotly contested.

Less Wealthy Spouses Favour English Courts

Couples who own properties in several different countries will sometimes be able to choose which of these countries they would like to file for divorce in, however couples won’t always be in agreement over this decision, particularly where there is a significant difference in wealth between the parties.

When it comes to financial settlements on divorce, the family law system in England is generally seen to allow for more generous settlements and therefore is often the divorce destination of choice for the less wealthy spouse. At the same time, and for obvious reasons, the spouse with comparatively more assets is usually keen to avoid the English courts.

Couple Argues over English and Scottish Jurisdictions

One wealthy couple currently in dispute over jurisdictions is Charles and Emma Villiers, reports the Daily Mail.

They lived in Scotland for most of their married life, but after the relationship broke down Mrs Villiers moved to London. In 2014 Mr Villiers, who is thought to have assets amounting to around £5 million, filed for divorce in Scotland, but several months later Mrs Villiers submitted an application for financial maintenance in England, seeking £10,000 month.

In 2016 a court ruling found that because Mrs Villiers was now ‘habitually resident’ in England, she had the right to have her settlement application heard in the English courts. She was awarded £5,500 a month as an interim measure until a full hearing on her settlement entitlement could be heard.

Mr Villiers has now challenged that decision, claiming that it should be up to the Scottish courts to decide on the financial settlement, as that is where the divorce has been filed.

However, Mrs Villiers has argued that under EU law the question of maintenance is separate from the divorce itself, and doesn’t have to be settled under the same jurisdiction. She maintains that there is therefore no reason why her financial settlement claim can’t be settled in England, even though the divorce itself is being processed in Scotland.

Husband Challenges Divorce Decision

A second couple currently in dispute over whether England is the appropriate jurisdiction to hear their divorce is Una Kelly and John Pyres, reports the Evening Standard.

The couple owns properties in London, Brussels and Italy. Ms Kelly was apparently born in England but most of her childhood was spent in Ireland. Mr Pyres was born in India, and also lived briefly in England, but now considers Italy to be his true home. The couple most recently lived together in Bosnia, which is where Mr Pyres thinks their divorce should be heard. However, Ms Kelly wants the divorce to be heard in England, and has been given permission by the courts to proceed with her application.

Mr Pyres has challenged this decision, claiming that his wife never saw England as her permanent home. However, Ms Kelly told the Appeal Court in support of her claim that she views their property in London as her home and that she plans to live in England when she retires.

We await the outcome of both these cases with interest.

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Divorce Application Process Goes Fully Digital

The Government has announced that is currently testing a fully online divorce application process across England and Wales for the first time.

The pilot scheme means someone who wants a divorce can apply online, which the Government says will make the process easier to understand and remove some of the stress during a difficult time for families.

The pilot was initially launched last year and according to the Government has reduced the number of applications being returned because of errors, with a 90% improvement compared to paper forms. It has apparently gained positive feedback, with people welcoming the simplified, streamlined and easy to understand system that delivers their application instantly – without the worry of it being lost in the post.

The next stages will include making the system available for use by legal representatives.

Family law organisation Resolution has said it welcomes the move to a fully digitised service as it brings divorce in line with many other Government services that have been digitised for some time now.

“Although the consequences of divorce, such as making arrangements for how parents will care for their children and sorting out the finances, can be complicated, the divorce itself is usually a relatively simple administrative process,” commented Resolution Chair, Nigel Shepherd. “Moving it online is a step in the right direction, provided it functions well for the couples, their legal representatives where they have them and anyone else involved. We hope to see positive results from this pilot.”

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Women Miss Out on Pension Savings in Divorce

Pension pots can be one of the most valuable assets belonging to couples, yet new research has found that these important savings are often being left out of divorce settlement calculations.

Pensions Often Not Included in Divorce Calculations

According to the study by Scottish Widows, 70% of couples don’t consider pensions during divorce proceedings, leaving women short-changed by £5bn every year. The average married couple’s retirement pot apparently amounts to £132k, which is more than five times the average UK salary (£26k) and just over the average price of a house in Bradford.

In fact, the research found that more married people would be concerned about losing a pet during a settlement than sharing a pension (13% vs 9%).

Comparable research conducted in Scotland found that women are losing out around £337 million a year, with an average couple’s retirement pot totalling £109k.

Women Less Prepared for Retirement

Overall, women are less well prepared for retirement than men, with 52% saving adequately for the future compared with 59% respectively. This figure falls to below half (49%) for divorced women, with nearly a quarter (24%) saying they are unable to save anything at all into a pension, twice the rate of divorced men (12%) saving nothing. Furthermore, two-fifths of divorced women (40%) say their retirement prospects became worse as a result of the split, compared with just 19% of men.

Even if pensions are discussed during a divorce settlement, women are still missing out – 16% lost access to any pension pot when they split with their partner and 10% were left relying completely on the State Pension.

Almost half of women (48%) have no idea what happens to pensions when a couple gets divorced, which may explain why so few couples consider them as part of a settlement. A fifth (22%) presume each partner keeps their own pension and 15% believe they are split 50/50, no matter what the circumstances.

Pensions and Divorce

In reality, pensions can be dealt with in a number of ways on divorce. The starting point should always be to find out what pensions there are, what are they worth and how they fit with any other assets such as property and savings and each spouse’s needs for a home and income.

If an adjustment needs to be made to get a fair overall outcome on a divorce this can be done by one person keeping their pension, but the other getting more of the other assets (called “offsetting”); or the court can make a pension sharing order giving a percentage of one person’s pension to the other (which could be 50:50 but often won’t be); or a combination of the two may be needed. However, pension sharing orders are made in just 11% of divorces.

“Generally speaking women’s retirement prospects are worse than men’s,” commented Catherine Stewart, Retirement Expert at Scottish Widows. “The persistent gender pay gap, maternity leave and career breaks can all hold back a woman’s earning potential and this often impacts pension savings. Relationship breakdowns can leave people really vulnerable but, quite simply, they’re also throwing significant sums of money down the drain.”

“It is important that everyone – whether single, married or divorced – take steps to understand their finances and prepare for their independent future should a relationship break down,” she added. “We would urge men and women to better understand the legalities around what happens to pension pots during divorce proceedings, as often they are the second largest, if not the largest asset a couple owns.”

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Warning Over Impact of Brexit on Family Law

Three family law organisations, Resolution, the Family Law Bar Association and the International Academy of Family Lawyers, have published a paper highlighting the impact that the slow progress of Brexit negotiations could have on family law in the UK.

Many family law disputes today have an international element, and the families affected rely on the reciprocal agreements that exist between EU member states.

Resolution highlights that there are around 140,000 international divorces and 1,800 child abduction cases across the EU each year. If Brexit doesn’t fully address how these international issues will be resolved going forward, the paper warns that many families face significant confusion and uncertainty and potentially unfair outcomes.

“Families needing to go to court must know that whatever court they end up in, in whatever country, that decision will be respected by other courts,” explained Daniel Eames, who chairs Resolution’s International Committee.

“EU instruments which affect UK family law deal primarily with procedural rather than substantive family law – sovereignty is not the issue here – but they require full reciprocity to work,” he said. “Without reciprocity there is a risk of a ‘one way street’ – the UK would continue to apply EU family law and be obliged unilaterally to recognise and enforce decisions of other EU member states – whereas EU member states would not be obliged to recognise and enforce our decisions.”

“This is a crucial issue for tens thousands of families in the UK, and the rest of the EU. If unresolved, these families could be left in limbo,” he added. “Our concern is that family law will go unnoticed among all the talk of trade deals, immigration and internal party politics. It may not top the Government’s priorities for Brexit, but the impact of inaction would be felt by families and their children for many years to come.”

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Calls for Introduction of No-Fault Divorce

Current divorce laws in England and Wales lead to exaggerated claims of bad behaviour by divorcing couples who are keen to get a quicker divorce.

This is the finding of research published by the Nuffield Foundation, which also concluded that this incentive to exaggerate behaviour can create unnecessary bitterness and conflict amongst divorcing couples.

Grounds for Divorce

Divorce is currently only possible in England and Wales on the following grounds:

  • Adultery
  • Unreasonable behaviour
  • Desertion
  • Living apart for more than two years, if both parties agree to the divorce
  • Living apart for at least five years, even if one party objects to the divorce

Under this system, couples who want to get divorced without waiting for two years (or five years if one party objects) need to claim that one party is at fault. Around 60% of divorces in England and Wales in 2015 were apparently granted on the grounds of either adultery of behaviour.

Removing Fault from Divorce

Researchers have therefore recommended that fault should be completely removed from divorce law and replaced by a notification system where couples could divorce if one or both of them register that the marriage has broken down irretrievably and confirm the intention to divorce after a period of at least six months.

“This study shows that we already have something tantamount to immediate unilateral divorce ‘on demand’, but masked by an often painful, and sometimes destructive, legal ritual with no obvious benefits for the parties or the state,” explained Professor Liz Trinder from the University of Exeter, who led the research. “A clearer and more honest approach, that would also be fairer, more child-centred and cost-effective, would be to reform the law to remove fault entirely.”

“There is no evidence from this study that the current law protects marriage, and there is strong support for divorce law reform amongst the senior judiciary and the legal profession,” she added. “We recommend removal of fault so that divorce is based solely on the notification, and later confirmation, by one or both spouses that the marriage has broken down. This should be a purely administrative process with no requirement for judicial scrutiny – in the twenty-first century, the state cannot, and should not, seek to decide whether someone’s marriage has broken down.”

Fault-Based Divorces Incite Conflict

The research has been welcomed by family law body Resolution, which has long been campaigning for the introduction of a no fault divorce system.

“This authoritative, academic research should eliminate any doubt from government that the law needs to change,” commented Resolution’s Chair Nigel Shepherd. “Fault-based divorces don’t reflect the reality of relationship breakdown for the majority of couples and do nothing to help them deal constructively with the consequences – indeed they often have the adverse effect of inciting additional conflict between separating partners.”

“At present, many divorcing couples are forced to play the ‘blame game’ – citing examples of unreasonable behaviour or adultery, long after the relationship has broken down, simply to satisfy an archaic requirement on the divorce petition which has its roots in laws drawn up more than a generation ago,” he added. “As the report rightly says, this is an often painful, and sometimes destructive, legal ritual with no obvious benefits for the parties or the state.”

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Supporting Male Victims of Domestic Violence

It is generally acknowledged that the majority of domestic violence victims are female, but this is not always the case and there is growing recognition that a significant number of men can also regularly find themselves subjected to violence and abuse at the hands of their partner.

In recognition of this fact, the Crown Prosecution Service (CPS) recently published its first ever public statement recognising the needs and experiences of male victims of these types of offences.

This has been welcomed by male domestic abuse charity the ManKind Initiative, which has taken part in several discussions with the CPS on how such a public statement will make a huge difference to male victims of these crimes. It will hopefully lead to changing societal attitudes toward male victims, recognising these crimes happen to men as well as women and giving more men confidence that they will be supported when they come forward.

The charity highlights that in the year ending March 2016, 4.4% of men (716,000) and 7.7% of women (1.27m) aged 16 to 59 were victims of domestic abuse; with 2.8% of men (451,000) and 5.4% of women (891,000) experiencing partner abuse (non-sexual).

Figures also show that:

  • In 2014-15, 61% of male victims and 88% of female victims told someone; 26% women and 10% of men told the police.
  • 2.7% of men and 4.6% of women were stalked in the year ending March 2016; 0.5% of men and 1.3% of women were stalked by a partner.
  • In 2015, 240 forced marriage cases (20%) involved male victims and 980 forced marriage cases (80%) involved female victims.

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Marital Satisfaction Affected by Age Difference

A recent study has found a link between marital satisfaction and the age difference between spouses.

Associate Professor Wang-Sheng Lee, an economist at the Deakin Business School, worked with University of Colorado’s Professor Terra McKinnish to examine the impact marital age gaps have on marriage satisfaction over time.

The researchers found that both men and women experienced greater initial satisfaction with their marriage when they had younger spouses.

They also found that the reverse was true, with men less satisfied with older wives and women less satisfied with older husbands.

However, the satisfaction associated with having a younger spouse was found not to last.

“Satisfaction eroded relatively quickly for people in couples with an age gap,” commented Associate Professor Lee said. “The initial higher levels of satisfaction experienced by husbands married to younger wives and wives married to younger husbands is expected to be erased within 6–10 years of marriage.”

“One reason for this decline is that differently aged couples might be less able to respond to negative economic shocks, such as job loss for the primary breadwinner or requiring funds for an emergency,” he explained. “In other words, similarly-aged couples are likely to be more resilient to shocks.”

“The data also suggests that couples with a larger age gap are less likely to have both partners working and this could make them financially more vulnerable,” he added.

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Supreme Court to Hear Divorce Appeal

A woman who was told by the family court that she could not obtain a divorce because her marriage had not irretrievably broken down has been given permission to appeal the decision to the UK’s Supreme Court.

Grounds for Divorce

Tini and Hugh Owens married in 1978 and separated in February 2015. Mrs Owens then filed for divorce in May 2015.

In order to obtain a divorce, Mrs Owen needed to be able to prove that her marriage had broken down for one of five possible reasons:

  • Adultery
  • Unreasonable behaviour
  • Desertion
  • They have lived apart for more than two years and both parties agree to the divorce
  • They have lived apart for at least five years, even if her husband disagrees.

Unreasonable Behaviour

Because Mr Owens didn’t agree that the marriage had irretrievably broken down and announced his intention to defend the divorce, the only way Mrs Owens could obtain a divorce without having to wait five years would be to prove unreasonable behaviour on the part of her husband.

In her divorce petition she alleged her husband behaved unreasonably in a number of ways, including prioritising his work over home life, withholding attention and affection and acting in an unpleasant and disparaging way towards her.

However, her husband argued that the examples given of his behaviour did not satisfy the requirements of s 1(2)(b of the Matrimonial Causes Act 1973) that he “has behaved in such a way that [she] cannot reasonably be expected to live with [him].” The judge agreed with his arguments and dismissed the petition.

Mrs Owens appealed the decision to the Court of Appeal, which reluctantly upheld the original decision.

In giving the decision one of the judges, Lady Justice Hallett, said:

“However, try as I might, I cannot find a legitimate basis for challenging the judge’s conclusions. He applied the law correctly and on the evidence before him, he was entitled to reach the conclusions that he did and provided good reasons for them.”

“I very much regret that our decision will leave the wife in a very unhappy situation. I urge the husband to reconsider his position. On any view, the marriage is over. I can only hope that he will relent and consent to a divorce on the grounds the parties have lived apart for a continuous period of two years, rather than force his wife to wait until five years have elapsed.”

Supreme Court Agrees to Hear Appeal

Mrs Owens then sought permission to take her appeal to the Supreme Court, which has now been granted.

Family law organisation Resolution has welcomed the decision to allow the appeal.

“Mrs Owens’ case highlights why divorce law in the UK needs to change,” explained Nigel Shepherd, National Chair of Resolution. “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,” he added. “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.”

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For expert legal advice on divorce and separation, or other areas of family law, then contact our specialist family lawyers today.

Contains public sector information licensed under the Open Government Licence v3.0.

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