To Defend or Not to Defend…?

In a recent divorce case, which surprised many family law practitioners, Judge Tolson refused to grant Mrs Tini Owens a divorce from her husband of nearly 40 years. Mrs Owens aged 65 described her marriage as having been ‘desperately unhappy’ for many years and that it had irretrievably broken down. She said that she felt ‘unloved, isolated and alone’. However, Mr Owens, aged 78 said that he felt that the marriage had not broken down and that the couple ‘still had a few years of old age together’. He also said that he had forgiven his wife for the affair she had in 2012 and that he had moved on from that. Judge Tolson ruled against Mrs Owens, concluding that her allegations against Mr Owens were ‘of the kind to be expected in a marriage’ and he refused to grant her a divorce based on his unreasonable behaviour towards her, saying that the examples Mrs Owens cited in her divorce petition, were ‘exaggerated’ and ‘at best flimsy’. Mrs Owens has now applied to the Court of Appeal seeking to overturn the judgement of Judge Tolson.

But how does this reflect on the average divorce case. Those contemplating issuing divorce proceedings should be aware that that defended divorce cases are extremely rare. In fact, the barrister representing Mrs Owens with her divorce case told the court that the ‘vast majority’ of divorced were undefended in 21st Century England and that ‘it is extraordinarily unusual in modern times for a court to dismiss a petition for divorce’. Hence, Judge Tolson’s decision and remarks, were a surprise to many family law practitioners.

In England, unlike Scotland, if you wish to obtain a divorce from your spouse, you must show that your spouse was at fault and caused the marriage to break down irretrievably unless you are relying on a period of separation of two years or five years. If a divorce is based on a period of separation of two or five years, there is no need to show that your spouse was at fault for the breakdown of the marriage. In fact, as part of the Law Society protocol and Resolution protocol, solicitors encourage spouses who wish to file for divorce, not to cite inflammatory allegations as to their spouses behaviour towards them and respondents (the spouse receiving the divorce petition) are usually advised to allow a divorce to proceed undefended, specifying that they do not accept the allegations in the divorce petition, but do agree that the marriage has broken down irretrievably. Defending a divorce maybe necessary in some cases, but these are indeed very rare and the decision to defend should be carefully considered with the benefit of specialist legal advice. Defending a divorce can be costly and time consuming, particularly when the family court is usually reluctant to force couples to remain married when at least one spouse does not wish to be in that marriage.Most of the time, the divorce process is straightforward and usually it’s a paper exercise, so neither party need attend court during the divorce process. However, attendance at court maybe necessary if there are disputes between the parties regarding children, finances or property in the marriage.

The Court of Appeal will now consider the ruling of Judge Tolson and balance the law as it stands against the need to encourage spouses to resolve the many matters that follow on from a marriage breakdown in an amicable, cost effective and time efficient manner.

The Court of Appeal is expected to give judgement in the case shortly. But if the appeal court find in favour of Mrs Owens, then many will see this as an acceptance by the judiciary that simply because one spouse does not wish to remain in the marriage, then that is enough to prove that the marriage has broken down irretrievably. If the appeal court find in favour of Mr Owens, then Mrs Owens will have to wait until the parties have been separated for at least 5 years as that will be the only legal route available to her to dissolve her marriage, as a divorce based on 5 years separation cannot be defended. It may also mean that only the very worst types of unreasonable behaviour will be enough to persuade the court to grant a divorce.

If you have any queries concerning the matters raised please contact Satvinder Sokhal , Specialist Family Law Solicitor on 020 8567 3477 or e-mail