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Unreasonable behaviour petitions ‘far more acrimonious’ since Owens v Owens

Resolution will advise members to keep seeking constructive solution

5 June 2017

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Family lawyers are seeing ‘far more acrimonious’ allegations on unreasonable behaviour petitions since the Court of Appeal decision in Owens v Owens, Solicitors Journal has learned.

Earlier this year Mrs Owens was refused a divorce from her husband after failing to prove he had behaved in a manner that would render her living with him unreasonable in accordance with the Matrimonial Causes Act 1973. She has since filed a petition with the Supreme Court to appeal the ruling.

However, family solicitors have said the appeals court decision has led to unreasonable behaviour petitions disclosing ‘more inflammatory’ allegations in fear of being rejected.

Karin Walker, a solicitor and founder of KGW Family Law, said: ‘Since Owens v Owens I am noticing a real trend in unreasonable behaviour petitions becoming far more acrimonious and filled with specific and provocative allegations of behaviour.

‘Previously, UB petitions, particularly in circumstances where matters relating to child arrangements or financial issues have been resolved by agreement, were drafted on a basis sufficient to be acceptable to the court but also with some regard to the ongoing relationship between the couple – especially if they are jointly parenting children. Now there is a fear that a petition will be rejected so the allegations are becoming more and more inflammatory.’

Walker added that where issues have not been resolved, and there is a possibility that the petition might be queried by the other spouse, or even defended, lawyers are preparing petitions that are longer and far more provocative. If this happens at the start of the process, she said, the parties begin on an adversarial footing, which then impedes out-of-court resolution of issues (child or financial) by agreement.

‘The trend which this is beginning to establish is a return to the days when petitions were adversarial and acrimonious but at that time so were financial and other proceedings,’ added Walker. ‘Now practitioners try at the outset to encourage out-of-court options for resolution of issues – these two situations do not sit comfortably together.

‘In the light of Owens I regrettably do expect this to continue until a “no-fault” based divorce process has been established.’

Nigel Shepherd, national head of family law at Mills & Reeve and chair of Resolution, said members of the family law practitioners group are seeing ‘more detailed and/or aggressive behaviour allegations’.

‘This is a clear and very regrettable consequence of the decision. Irrespective of whether Mrs Owens’ application for permission to appeal to the Supreme Court is granted, the reaction of some family lawyers to the judgment simply underlines the need for reform by removing fault from the divorce process completely.

‘Notwithstanding the temptation to “strengthen” particulars post-Owens, it is not necessary in the vast majority of cases, which are undefended and where mild, and often agreed, behaviour allegations will go through without a problem.

‘Resolution will be sending out guidance to members shortly emphasising this and the benefits to couples and children of maintaining the current approach advocated by the Resolution Code of Practice.’

Matthew Rogers is a legal reporter at Solicitors Journal

matthew.rogers@solicitorsjournal.co.uk | @lex_progress

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