The Supreme Court has this week rejected an appeal by a woman who wants to divorce her husband of 40 years because she says their marriage is unhappy.
Tini Owens has been told that she must stay married to Hugh Owens because a joyless marriage is not enough to secure a divorce if the other party refuses to agree that the marriage has broken down irretrievably.
Dawn Gore from leading law firm Trethowans says this high profile case has placed a new focus on divorce laws which are now 45 years old and need to be reformed.
“As the law stands at the moment the petitioner must cite one of five facts to satisfy the court that the marriage has irretrievably broken down,” said Dawn.
“The fact on which Mrs Owens sought to rely was that Mr Owens has behaved in such a way that she could not reasonably be expected to live with him. This is commonly referred to as “unreasonable behaviour”, although that wording does not appear in statute.”
Dawn said that for many years it has been accepted that allegations of behaviour at the start of proceedings are likely to inflame the relationship between the parties so the legal experts have moved towards a non-confrontational approach and just brief details as to why a marriage has broken down.
Dawn said that whilst this approach is recommended in the Family Law Protocol and supported by the Law Society, Resolution and the judiciary, it has not helped in the Owens case.
In this particular case, Mr Owens was of the opinion that the marriage had not irretrievably broken down, albeit that he did not deny having behaved in the way alleged by Mrs Owens.
The Courts determined that the behaviour alleged was not such that Mrs Owens could not reasonably be expected to live with Mr Owens.
Whilst expressly stating that the case left the Justices feeling “uneasy” and “troubled” and endorsing the continuing practice of lawyers to providing the minimum detail necessary to convince the Court that the marriage has irretrievably broken down, Mrs Owens’ appeal was dismissed.
“Surely now, the time has come for Parliament to reform these archaic laws,” said Dawn. “Resolution supports a change in the law, allowing a no-fault divorce.”
As it stands now Mrs Owens will be in a position to issue a new petition in 2020, when she will by then have lived separate and apart from Mr Owens for a continuous period in excess of five years.
To find out more about family law visit www.trethowans.com