Posted on 25.7.18 by Kerry Lees-Russell
This morning the Supreme Court unanimously rejected Tini Owens appeal to grant her a divorce from her husband of 40 years Hugh, who is refusing to split up, meaning she must remain married until 2020.
Lord Wilson said the case was dismissed “with reluctance” and that it was a question for Parliament.
The couple were married in 1978 and have two adult children.
Mrs Owens left the matrimonial home in February 2015. She stated the marriage had broken down irretrievably and that Mr Owens had behaved in such a way that she could not reasonably be expected to live with him.
Mr Owens, has refused to agree to a divorce and denied Mrs Owens’ allegations of his behaviour. He says if their marriage has irretrievably broken down it is because she had an affair, or because she is “bored”.
Supreme Court president Lady Hale said she found the case very troubling but it was not for judges to change the law. One appeal judge said she reached her conclusion with “no enthusiasm whatsoever” but that Parliament would have to decide whether to introduce no fault divorce on demand. Another said Parliament had decreed that being in a “wretchedly unhappy marriage” was not a ground for divorce.
Kerry Russell, Family Solicitor at Gorvins, is not surprised by the outcome of the supreme court’s decision “The court has clearly done its job in correctly interpreting the law in its present form and in my opinion, it is now up to Parliament to look to reform divorce law in this area to include the right to divorce without blame. Playing the blame game should not be a prerequisite for ending a marriage, this only serves to increase acrimony between couples which may ultimately have a knock-on emotional effect on the children.” Kerry has always encouraged divorcing couples to behave in a non-confrontational manner in order to take the heat out of a divorce and any associated negotiations regarding financial and children aspects.
The judge who heard the original case found the marriage had broken down, but that Mrs Owens’ examples were “flimsy and exaggerated”.
Nigel Dyer QC, who led Mr Owens’ legal team, disagreed and raised concerns about the introduction of divorce on “demand”.
Mrs Owens had already lost two rounds of the battle. In 2016 she failed to persuade a family court judge to allow her to divorce and last year three appeal judges ruled against her after a Court of Appeal hearing.
Mrs Owens’ lawyers stated that she should not have to prove Mr Owens’ behaviour has been “unreasonable”, only that she should not “reasonably be expected” to remain with him. Her lawyers said a “modest shift” of focus in interpretation of legislation was required.
“This latest judgment highlights to all those seeking to divorce on the basis of the other spouse’s unreasonable behaviour that it is crucial to only do so if they can be satisfied that the allegations of unreasonable behaviour are not going to be considered as “flimsy” and based merely on the other spouse’s personal idiosyncrasies.” Kerry adds “I fear that this judgment will only encourage people to cite more extreme and extreme allegations on unreasonable behaviour which may end up prejudicing any chance of an amicable resolution for families.”
To apply for a divorce you must be able to prove your marriage has irretrievably broken down and give one of the following five reasons:
- The other spouse’s adultery
- The other spouse’s has behaved in such a way that the other cannot reasonably be expected to live with him or her;Adultery
- Unreasonable behaviour
- You have lived apart for more than two years and both agree to the divorce
- You have lived apart for at least five years, even if your husband or wife disagrees
Kerry states “This law is over 40 years old and although there was an opportunity for the court to move case law into line with current social norms, it was clear from the judgment that Judge’s hands were tied and that they came to the decision “reluctantly” and quoting Lady Justice Hale “I have found this a very troubling case. It is not for us to change the law… our role is only to interpret and then apply the law that Parliament has given us” and Lord Wilson “Parliament may wish to consider whether to replace a law which denies to Mrs Owens any present entitlement to a divorce in the above circumstances”. It’s time to the government to act!”
If you would like any advice regarding a divorce or separation, you may contact Kerry Russell, Associate Family Solicitor by calling 0161 930 5151 or email email@example.com