Mrs Owens has been refused a divorce from her husband and will ‘remain trapped in their loveless marriage’, the Court of Appeal has ruled.
Mr and Mrs Owens married in 1978 and separated in February 2015. Mrs Owens issued a petition for divorce on the basis of Mr Owens unreasonable behaviour.
In England and Wales, divorce can only be obtained by establishing one of five facts under the Matrimonial Causes Act 1973, which prove that the marriage has broken down irretrievably, namely:
- The other party having committed adultery;
- The other party's unreasonable behaviour;
- The other party having deserted the petitioner for two years;
- The parties having separated for two years, and both consenting to the divorce; and
- The parties having separated for five years (with no consent requirement).
As two of these facts require that the parties have separated for a time and a third requires desertion, if the parties are living together or have only recently separated then the party seeking divorce is often restricted to relying on the two remaining fault-based facts.
Last year a family court ruling refused to grant ‘desperately unhappy’ Tini Owens a divorce from her husband, Hugh, who successfully argued that, despite his alleged unreasonable behaviour and her affair with another man, the 39-year marriage had not broken down irretrievably. He was against a divorce and said they still had a “few years” to enjoy.
While there is a very low threshold to establish that it would be "unreasonable" for a party to remain in a marriage as a result of the other party's behaviour, Mrs. Owens' case is a reminder that there remains a threshold nonetheless. The District Judge held that her husband's behaviour had failed to meet that threshold and had simply been "minor altercations of a kind to be expected" in the course of a marriage. As this was the ground on which Mrs. Owens relied, her husband was able to successfully defend against the divorce, itself a highly unusual outcome.
It is however very rare for a judge to refuse to grant a petitioner's request for divorce, which is partly why Mrs. Owens' initial refusal of a divorce and her subsequent appeal attracted considerable media attention, and the attention of practitioners such as myself.
Three appeal judges – Sir James Munby, the most senior family court judge in England and Wales, Lady Justice Hallett and Lady Justice Macur – analysed the case at a hearing in London on Valentine’s Day. They dismissed Mrs Owens’ appeal in a ruling published on Friday.
The appeal judges agreed that despite the evidence before them, Mr Owens had not behaved in a way that Mrs Owens cannot reasonably expect to live with him under section 1(2)(b) of the 1973 Act. Accordingly, Judge Toulson had made no error of law in his reasoning.
“We cannot interfere with Judge Tolson’s decision and refuse the wife the decree of divorce she sought,” said Sir James.
“Mr Marshall (representing the wife) complains that the effect of Judge Tolson’s judgment is to leave the wife in a wretched predicament, feeling, as she put it in her witness statement, unloved, isolated and alone, and locked into a loveless and desperately unhappy marriage which, as the judge correctly found, has, in fact if not in law, irretrievably broken down.”
Mrs Owens, now aged 66, will have to wait until she is 70 before she can escape her marriage as the only legal route available to her will be to dissolve the marriage on the fact of five years’ separation from Mr Owens.
As a family law specialist, and as a member of Resolution, I am horrified by the judgment. I hope that Parliament will now urgently consider the introduction of no-fault divorce, so that English divorce law can be brought into the 21st century.
Rachael Haine is part of our Family Law team at Giles Wilson. She is a member of Resolution and is accredited by the Law Society. Rachael specialises in child matters, domestic violence, divorce, ancillary relief and cohabitation disputes. If you would like to receive advice from Rachael, or any other member of our team, get in touch.