The implications of Owens v Owens [2018] UKSC 41 for Family Practitioners

The background to this case will be well-known to many practitioners so this post will not repeat it. Instead, it focuses on two criticisms made by the Supreme Court about the way in which Mrs Owens’ petition was case managed which, it is suggested, will have unfortunate consequences for those of us working in this field.

The first of these relates to the drafting of petitions. Mrs Owens’ petition was described by HHJ Tolson QC as “anodyne”, “flimsy”, insufficient to show a “persistent course of conduct” and “scarcely” meriting criticism of Mr Owens. These findings were understandably left undisturbed by the Supreme Court. The publicity surrounding the case is likely to mean that practitioners now find themselves under pressure to draft fuller and more colourful petitions, and the days using neutral language out of a desire to avoid fanning the flames of combat may be at an end. Such a development would be wholly contrary to the advice of the Law Society, quoted at paragraph 7 of the judgement in Owens, that:

“where the divorce proceedings are issued on the basis of unreasonable behaviour, petitioners should be encouraged only to include brief details in the statement of case, sufficient to satisfy the court…”

Perhaps the only way to satisfy the seemingly incompatible goals of ensuring that a petition has “sufficient beef” to satisfy judges yet avoids inflaming an already strained relationship is to rely on the court allowing litigants to amend or augment their petitions at a Case Management Hearing listed pursuant to FPR 7.22(2) as and when a petition is defended.

The second implication of the judgement that this post will discuss relates to the hearings of contested divorces. Such cases are rare, but in my experience becoming less so partly due to the increased number of self-represented parties appearing before the courts.  Mrs Owens’ petition came before a recorder for case management following Mr Owens’ defence of the suit. The matter was set down for final hearing with a time estimate of one day with a direction that the parties should file short statements. Importantly, no direction was made for evidence to be given by anyone other than the parties and it must have been on both Mrs Owens’ counsel’s and the recorder’s mind that it would be impossible to hear all allegations on which Mrs Owens relied, or consider the full history of the parties’ conduct during their long marriage, at such a short hearing. The Supreme Court was critical about this direction and noted that the one day time estimate had been insufficient to enable the full nature of the conduct alleged against Mr Owens to be properly evaluated. Whilst this unease wasn’t enough for the court to allow Mrs Owens’ appeal, it may well lead to a wholesale change in the way the Family Court deals with the small number of defended divorces that come before it. Rather than the kind of summary half-day or one day hearing directed in Owens, cases will now have to be listed for far longer, and of course costlier, hearings at which numerous allegations of poor conduct can be heard (at least in cases where the petitioner relies on a course of conduct) with evidence from a number of witnesses. It must go without saying that such an approach is unlikely to be conducive to the amicable resolution of financial issues and must surely be wholly disadvantageous for any children.

Lord Wilson’s judgment acknowledges that the family court “takes no satisfaction when obliged to rule that a marriage which has broken down must nevertheless continue in being”. Nonetheless, the judgment may have some undesirable consequences including the ‘ramping up’ of the language used in behaviour petitions and far longer hearings when divorces are contested. Hopefully, this will add to the almost unanimous call from the public and the profession to reform the law so that those who find themselves in Mrs Owens’ unfortunate position are not prevented from ending a marriage which any right-thinking onlooker would conclude has irretrievably broken down.

 

Jack Rundall