Bloomsbury Family Law Briefing: August Teaser

Defended divorce: Owens v Owens

In Owens v Owens [2018] UKSC 41 the Supreme Court held that on the evidence before the first instance judge he and the Court of Appeal were correct to refuse her petition. Two surprising features, which make the case so unsatisfactory, is that all or even the large part of Mrs Owens’s case was not presented to the court and she – or lawyers on her behalf (who had presumably advised on the evidence she called) – rejected her chance to have the full evidence tested. Lord Wilson was left with ‘uneasy feelings’. Lady Hale would have allowed the appeal and sent it back to another judge for trial on a more broadly pleaded petition. She was inhibited by Mrs Owens’s counsel’s ‘dread’ at the case being reheard. And a s 1(2)(e) (five year living apart) petition would be available to Mrs Owens in February 2020.

Powerful calls for law reform remain. In the meantime this article suggests ways in which from a conciliatory first petition pleadings may be amended if a divorce is to proceed defended.

Top five cases

Re A (Children) [2018] EWCA Civ 1718 (25 July 2018) - Assessment of burden of proof in children proceedings: a mathematical approach is wrong.

Mills v Mills [2018] UKSC 38 (18 July 2018) – First instance judge’s refusal to vary wife’s periodical payments order had been wrongly altered on appeal where it had been required by W’s mismanagement of her own finances.

Owens v Owens (above) – Wife refused Matrimonial Causes Act 1973 s 1(2)(b) divorce on inadequate evidence of husband’s behaviour.

Re RD (Deprivation or Restriction of Liberty) [2018] EWFC 47 (28 June 2018), Cobb J – Was a 14-year-old girl’s therapeutic accommodation, during care proceedings, such that she was deprived of her liberty (European Convention 1950 Art 5)?

Williams & Anor v London Borough of Hackney [2018] UKSC 37 (18 July 2018) – Supreme Court review of law on local authority voluntary accommodation (Children Act 1989, s 20),

David Burrows

Family Law Briefing is part of the Bloomsbury Family Law Service. The full briefing is available here.

Written by Ellie MacKenzie

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