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Anon @ 13.50 - the uneasy feelings are related to the way that the judge at first instance dealt with the hearing.

It's not my area, but skim reading the judgment it was said that the guidance is not to go overboard as far as detail of unreasonable behaviour is concerned; it can create further ill-feeling making it harder for both parties to deal with the financial and other aspects amicably.

Again, skim reading but it seems that when it became clear that it would be contested, the judge essentially gave Mrs Owens a chance to go into more detail. Mrs Owens was suggesting long-standing unreasonable behaviour over many years, but (for whatever reason) the hearing focused on more recent issues. So to quote, the original "hearing was not set up or conducted in a way which would enable the full flavour of such conduct to be properly evaluated".

Lord Wilson gave 3 reasons for his unease (para 42)
- the process adopted was suited for uncontested proceedings and not really suitable for a defended divorce relating to issues over many years,
- that the judge focused only on 3 incidents in isolation whilst essentially ignoring that these had been given as examples of continuing behaviour,
- that the judge concluded Mrs Owens had significantly exaggerated her case despite the fact that Mr Owens had not disputed much of what Mrs Owens had said.

Lord Wilson deferred to the judge at first instance despite these issues. However, they were significant enough that Lady Hale would have allowed the case to be sent back and be re-heard at first instance. Mrs Owens apparently said she didn't have the heart for a second contested hearing, taking into account that with the time taken for the appeals, she can insist on a divorce in less than 2 years anyway based on 5 years separation.

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