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Divorce Preparation

12th April 2017

Judith Fitton discusses how to approach issues of divorce and finances, and safeguard the future in an article written for Essence Magazines April issue.

Compelled to remain in a marriage against her will, a wife has been told by the Court of Appeal that she is not entitled to a divorce, despite the marriage having broken down.

Mrs Tini Owens applied for a divorce on the basis of her husband’s unreasonable behaviour. Such application must contain evidence of the alleged behaviour and she cited incidences such as the arguments they had in public and the fact that he had once spent a whole meal in a pub with his head resting in his hands.

The Court of Appeal held that the original judge’s decision to refuse the divorce was correct in law but acknowledged that the wife was left “in a very unhappy situation.”

Although this case has hit the headlines, it is highly unusual. Divorce papers should be drafted carefully and as a specialist family lawyer, I always advise clients to ensure that the petition contains sufficiently strong particulars to pass the test. The judge does not have to be convinced than any person would find the respondent unreasonable, just that the petitioner is genuine in their belief that they can no longer continue in the marriage.

It is better to try to agree the wording of a behaviour petition with a respondent in advance; this is a courteous step and avoids any nasty surprises for the respondent. Negotiation is usually possible on any points that the respondent finds objectionable and if agreement can be reached over the early documents, this also bodes well for agreeing other matters such as finances.

The Court of Appeal reluctantly held in the Owens case that couples must engage in “consensual, collusive, manipulation” of the law to obtain a divorce based on the behaviour ground. This is perhaps putting it rather dramatically, but clear advice at an early stage can avoid problems later on.

The campaign for a reform of our antiquated divorce laws grows in momentum in the meantime.

Divorce top up for a wife who made financial blunders

In another recent ruling, a wife who managed to lose much of her divorce settlement by gambling on the property market has succeeded in persuading the Court to increase her maintenance from her ex-husband.

After divorcing n 2002, Maria Mills tried to climb the property ladder, aspiring to a flat in a mansion block in Battersea, but ran up debts that she could not repay. She had no choice but to sell up and move into rented property, then went back to Court and sought an increase in her monthly maintenance payments from her former husband, despite the fact that he had moved on with his life and had remarried with another child.

Close examination of the case shows that the further award made to the wife was modest – just an increase of £341 per month on maintenance of £1,100 per month. Mr Mills was not ordered to pay further capital to his former wife (her claims having been dismissed in 2002) and it seems he had a comfortable income available.

How did she succeed with the application? Her claim was based on need and she was able to prove that she could not manage without additional assistance from her ex.

The case perhaps serves as a reminder to household breadwinners, that maintenance claims are always potentially capable of variation and that if capital is available to fund a clean break, this would insure against nasty surprises in the future.

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