Saracens Blog

I Want A Divorce… Do I Have To Stay Married?

No one could accuse Tini Owens of not giving marriage her best shot. Her nuptials lasted 37 years before she decided to call it a day – about five times as long as your average celebrity marriage (and indeed many marriages involving us ‘normal’ people).

But the Supreme Court has upheld a decision which came as a gigantic slap in the face to unhappily married couples all over England and Wales – just because you want a divorce does not mean the court will grant you one.

Mrs Owens, who wants to divorce her husband on the grounds of unreasonable behaviour, must now stay married until at least 2020, unless her husband has a change of heart and consents to allowing a divorce. Given the fact he has spent thousands of pounds defending his right to stay married to his wife, I doubt Mrs Owens is holding her breath for such an eventuality.

The case has ignited a furious debate about whether Parliament needs to legislate for ‘no-fault’ divorce.

Mr and Mrs Owens – a portrait of an unhappy marriage

Hugh and Tini Owens have two grown-up children and have enjoyed a prosperous lifestyle after running a successful business which turned over around £5 million per year.

In 2012, Mrs Owens consulted solicitors about a divorce. At this time, she also became romantically involved with another man. However, she did not petition for a divorce until 2015, citing unreasonable behaviour on the part of Mr Owens.

Because of the cost and emotional stress involved, few divorces are defended. If one party disagrees with the particulars of a petition (such as examples of unreasonable behaviour), solicitors should negotiate amendments. But in the case of Owens v Owens, the husband said he forgave his wife for her affair and wanted to live out the remainder of their lives together. He therefore defended the divorce, all the way to the Supreme Court.

Judge Robin Tolson QC, sitting in the High Court, rejected the examples cited by Mrs Owens of unreasonable behaviour. He described Mr Owens as simply “old school” and stated that Mrs Owens was “more sensitive than most wives”. In his opinion, there was no good reason why Mrs Owens could not be expected to live with her husband.

So far, so Victorian.

The court cannot change the law on divorce

Mrs Owens appealed, and the Court of Appeal upheld the High Court’s decision.

Both courts acknowledged the undesirable effect their decision would have on Mrs Owen’s life. Sir James Munby, President of the Family Division said when delivering the judgment of the Court of Appeal:

“…. 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 …”.

But despite this fact, Sir James Munby stated that Parliament had decreed a “wretchedly unhappy marriage” was not a ground for divorce and the court had no choice but to apply the law as it was set out.

The Supreme Court subsequently agreed, stating it was not for judges to change the law made by Parliament.

The push for ‘no-fault’ divorce

You would be hard-pressed to find many supporters for the continuation of fault-based divorce. Most family lawyers, including members of Resolution, believe it is time for the government to bring current divorce laws in line with the realities of social expectations and family life in the 21st century.

Countries as culturally diverse as Australia, China, and Spain have no-fault divorce. In 2018 it is unbelievable that the government and the courts can force a person to remain married when they clearly cannot stand to even be in the same room as their spouse, let alone bound together in holy matrimony.

Tini Owens is 68 years old. She is not a child to be dictated to about who she should remain married to for the next two years. The law needs reform, so the sanctity of marriage does not become a farce, driving couples to avoid what can be termed now, legally at least, a somewhat archaic institution.

 

Saracens Solicitors is a multi-service law firm based opposite Marble Arch on the North side of Hyde Park in London. We can advise you on all matters relating to divorce and we are members of Resolution. For confidential information, please call our office on 020 3588 3500.

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