Why the case of Tini Owens shows we urgently need ‘no fault’ divorce

On behalf of Attwaters Jameson Hill posted in Divorce on Friday, July 27th, 2018

In yet another demonstration that divorce laws in the UK need to be revisited and updated, a woman who has been married for 40 years and finds herself locked in a loveless relationship has been refused a divorce.

Tini Owens, 68, maintains that her relationship with her husband Hugh has broken down irretrievably because of his unreasonable and controlling behaviour. However, she failed to convince five Supreme Court justices that this was the case. This means that she has no alternative other than to wait until 2020, when the marriage can be ended on the grounds that by then they will have been separated for five years
 

Grounds for divorce

Under the Matrimonial Causes Act 1973, the only grounds for divorce in England and Wales is that the marriage has irretrievably broken down, and to prove that, the spouse bringing the divorce petition must cite one of five reasons. Three of these – adultery, unreasonable behaviour and desertion – are based on fault. To avoid the need to resort to fault and blame, couples must wait two years, or if one of them opposes the divorce, five years.

In England and Wales, 60% of divorces are based on fault, whilst in other countries, the need to cite fault has largely been abolished. Having to make these allegations has long been viewed as unnecessarily stressful and damaging to children, and a source of additional friction and discord between the divorcing couple.
 

Why the court didn’t grant the request

In her petition, Mrs Owens cited the grounds of unreasonable behaviour, but in the court’s view she didn’t meet the test. Despite giving 27 examples of her husband’s “moody, argumentative and embarrassingly critical” behaviour, the Supreme Court justices didn’t feel able to alter the original judge’s decision, although they did express the view that divorce law reform was a matter for parliament.

They did however clarify that when examining unreasonable behaviour, the courts should not be looking at the behaviour itself, but whether it was such that the petitioner “cannot reasonably be expected to live with him or her.”
 

Where are we now?

There is cause for hope. The ruling highlights some of the failings of the present outdated divorce laws, and will no doubt give rise to increased pressure for reform.

Commenting on the outcome of the case, Joyti Henchie, Partner and Head of Family Law, said: “Sadly, this decision will see family practitioners being forced to draft more detailed and strongly-worded particulars in divorce petitions. Having to do this often leads to heightened emotions and serves to antagonise what is already a difficult situation. This is completely contrary to what is advised by the Law Society and Resolution; both encourage particulars to be mild and moderate in the hope that matters can proceed amicably. Unfortunately, until we see a shift to a ‘no fault’ divorce, this is what we have to contend with.”

 

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