This is a question still without an answer for Tini Owens, a 66 year old woman who left the matrimonial home and her husband of nearly 40 years as long ago as 2015.
Mrs Owens applied to the Family Court to divorce her husband on his ‘unreasonable behaviour’. Unusually, Mr Owens defended the divorce petition, something which happens in less than 1% of cases. Upon hearing the case the Court did not accept that the marriage had ‘irretrievably broken down’.
She alleged that her marriage was a ‘loveless and desperately unhappy’ one. She further alleged that she could no longer live with her husband’s ‘continued beratement’ of her and that she felt ‘unloved, isolated and alone’ and ‘constantly mistrusted’.
Last year a Judge refused to grant Mrs Owens the divorce, commenting that they were ‘minor altercations of the kind to be expected in marriage. Mrs Owens took the case to the Court of Appeal where the appeal judges upheld the original ruling, saying that ‘in law’ the marriage had not broken down irretrievably.
Mrs Owens now awaits a date to appeal this decision in the Supreme Court and in the meantime continues to be a ‘locked in’ wife.
Presently, under the Matrimonial Causes Act 1973, spouses have to prove to the Court that a marriage has broken down irretrievably in order to get a divorce. In doing so the person applying for the divorce must rely on one of the following facts:
The other person’s adultery, and that they find it intolerable to live with them as a result
The other person’s unreasonable behaviour
After the other person has deserted them 2 years
They have lived separate and apart for 2 years, and the other party consents to it
They have lived separate and apart for 5 years, which does not require the other party’s consent.
It should be pointed out that no spouse can divorce within the first year of marriage, something we call the ‘one year bar’.
In the case of Owens v Owens, the Court of Appeal judge Sir James Munby, who is the President of the Family Court in England and Wales, did point out that some people would consider that unhappiness should be grounds for divorce.
Legal professionals up and down the country believe the present law surrounding divorce to be outdated and that, in practice, has little regard for the emotional impact being ‘locked in’ to an unhappy marriage will have upon any children of the relationship and the spouses themselves.
Certainly Baroness Hale, one of the most senior judges sitting in the Supreme Court, has called for the law to be changed significantly, believing it to be ‘unjust’.
Resolution is a national organisation of family lawyers committed to non confrontational divorce. It has lobbied parliament to change the law over a number of years.
Nigel Shepherd, Chair of Resolution commented upon hearing the Court of Appeal ruling in Owens v Owens:
We are today repeating our call on the Government to change the law and introduce no-fault divorce. The reasons for marriages breaking down are often complex and rarely will both spouses agree on them.
“It is simply wrong that, in 2017, anyone who can’t afford to put their lives on hold for two years whilst waiting to divorce is required to apportion blame. And asking judges to rule on who did what is unacceptable in a modern society.
“Successive governments have dragged their heels on this issue for too long. Owens v Owens must be the spark that ignites a fundamental change in our divorce law.”
With the media having widely reported on this case it seems that momentum is gathering for change. A new bill providing for No Fault Divorce was something that the government had previously shelved. Will Tini Owens’ case be the final nudge that the government needs to effect change to the law?
In the meantime, if you require advice in relation to divorce contact Farleys Solicitors on 0845 287 0939 or submit your enquiry through our online contact form.