The Supreme Court Judgment in Owens –v- Owens released today:
This case concerns Mrs Owens petition for divorce from her husband of 40 years. She is 68, he is 80. She wishes to divorce, he doesn’t and he therefore defended her petition. At a county court trial, the Judge found that Mrs Owens examples of behaviour were all “flimsy”, “exaggerated” or “taken out of context”. The court found that she had failed to prove that the marriage had broken down as a consequence of her husband’s behaviour and therefore the long appeal process began and ended up in The Supreme Court which has today delivered their Judgment. Mrs Owen’s appeal has been dismissed and she must remain married to her husband.
Mrs Owens must now wait until 2020 when she can proceed with a petition based upon 5 years separation (which does not require her husband’s consent). However, this case highlights to all practitioners the need for careful drafting of divorce petitions. A good practitioner will find a balance between proving that the petitioner’s life is intolerable as a result of the respondent’s behaviour whilst seeking to keep tension to a minimum.
If, like Mrs Owens, you fail to demonstrate a link between the other party’s behaviour and it becoming intolerable to live together, then you too may find yourself in a position where despite your feeling that the marriage has broken down, you will be unable to legally remove yourself from it.
If you require advice in relation to your marriage breakdown, our family team at Bevirs can offer you expert advice.
Michelle Bowyer 25.07.2018
Stuart McNeil, Head of Litigation on Mills-v- Mills
The Supreme Court has formally issued its judgement in a case where an ex-wife had applied to increase her maintenance payments of £13,200.00pa. As a result of losing money awarded to her in the divorce settlement made over ten years earlier, she had got herself into debt. The Supreme Court has ruled that the Judge who first heard the case was correct when refusing to increase the maintenance on the basis that the couple had already divided their capital and the husband should not have to pay more because the wife had lost much of hers.
The case has attracted a lot of attention in the press suggesting that this is the end of the ‘meal ticket for life’. This case doesn’t actually make any definitive principles about long term maintenance payments as the decision turned very much on its own facts, but nevertheless it highlights the increasing trend for courts to try to ensure that couples are able, and are expected, to stand on their own feet as soon as possible after separation, which is why achieving a clean break by the payment of extra capital instead of maintenance, is often the best way forward, whenever possible.
Emily Bourne, Trainee Legal Executive in our residential conveyancing team talks about the recent case against Network Rail due to overgrown knotweed.
On 3rd July 2018 the Court of Appeal heard the case between Network Rail and a Mr Williams and a Mr Waistell. The Appeal was brought by Network Rail after the Cardiff County Court found in favour of Mr Williams and Mr Waistell in respect of their claims of private nuisance against Network Rail who allowed Japanese knotweed to grow on their land which was adjacent to the properties owned by Messrs Williams and Waistell.
Japanese knotweed itself is a hardy bamboo-like plant that is strong and grows quickly spreading through its underground roots or rhizomes. Both the Royal Institution of Chartered Surveyors (RICS) and the Environment Agency have published papers regarding Japanese Knotweed and comment on its ability to affect drains, patios, boundary walls etc. The eradication of Japanese Knotweed must be carried out by licensed organisations and entails a long and complex treatment process.
Mr Williams and Mr Waistell were the owners of two adjoining semi-detached bungalows in Maesteg, South Wales with Network Rail owning the land immediately behind their properties. On Network Rail’s land was a large clump of Japanese Knotweed which all the parties agreed had been there for at least 50 years. Messrs Williams and Waistell brought claims in private nuisance against Network Rail on the basis that the Japanese Knotweed had encroached on their properties and interfered with their quiet enjoyment of their properties.
At the initial trial the Judge found that whilst the Japanese Knotweed had encroached on to the properties no physical damage had actually been caused but when considering the ‘interference of quiet enjoyment’ element of the claim the Judge held that whilst physically there was no loss because of the minimal amount that the Japanese Knotweed encroached onto the properties, Williams and Waistell had suffered the loss of quiet enjoyment.
The Court’s reasoning was that the amenity value of a property includes the ability to dispose of it at a proper value. This combined with the fact Williams and Waistell had to live with the concerns and consequences of having Japanese Knotweed on their land amounted to a loss of quiet enjoyment. The Court did not grant an injunction compelling Network Rail to treat the Japanese Knotweed but did award compensation to both Williams and Waistell.
The Court of Appeal agreed with the Trial Judge’s decision but on different grounds. The Appeal Judges said the Trial Judge was wrong to conclude a diminished market value was enough to amount to a loss of quiet enjoyment. Instead they held that due to the nature of Japanese Knotweed, the mere presence on Williams and Waistell’s land affected their quiet enjoyment because not only was there a risk of future physical damage but also it placed a burden on them to deal with the issue of removing and treating it.
Beware conveyancers when completing the property information form to ensure the question on knotweed is answered accurately.