Divorce – “it Ain’t Over Till Its Over”
As Lenny Karvitz once said “It Aint Over Till Its Over” so, one has to feel for Tini Owens, when will her on going marriage to Hugh come to an end. I doubt she envisaged when she issued proceedings in 2015, with her seemingly indiscernible divorce petition to that of so many other petitions issued with the court that same year that she would be in the middle of a legal quagmire. The only difference being that Tini was married to Hugh and Hugh despite living apart from his wife for the previous three years, decided he wanted to defend the petition, citing they had a few more “good years” of marriage left. I doubt that was the case, the marriage had clearly broken down. The Owens’ are not the average couple, defended behaviour petitions are very rare, the reason being the costs of defending them. The majority of Respondent’s once they know how much the legal costs are and the likelihood of successes, bow out early, citing the usual phrase that they do not accept the particulars cited in the petition, but they agree to the divorce going ahead.
So why is Hugh taking this course of action, especially when Tini can divorce him anyway after 5 years whether he likes it or not! Hugh and Tini have two issues to resolve, the dissolution of their marriage and the financial distribution of their marital assets following their divorce. Unless a final order is made within divorce proceedings, the court has very limited powers to provide financial support to the other spouse, other than maintenance orders. Tini could have issued proceedings for Judicial Separation, where a court can make a financial order, but not a clean break order or a pension sharing order. However, Tini would still need to prove the same fact of behaviour. Therefore, in circumstances where one spouse owns all the marital wealth, they have control until a final order is made by the court. This leaves the other spouse vulnerable for a number of years.
So when does common sense prevail, was there a reason why Tini’s legal team did not look to ask the court for leave to amend the original petition to include more detail, perhaps some incidents of behaviour which Tini would have preferred to keep private and did not include to save any animosity. The majority of solicitors try to keep a petition uncontroversial to save the parties the upset of seeing the reason for the breakdown of their marriage in black and white, retaining less acrimonious approach.
Whatever the outcome of the Supreme Court’s decision, the case of Owens has opened the conversation for no fault divorce and highlighted the issues with the current law and reignites an argument more than 10 years old, for a no-fault divorce, which was provided for in the Family Law Act 1996, but which was never enacted.