201709.15

“You’re being unreasonable” “No, I’m not!” “Yes, you are!”

In May 2015 Mrs Tini Owens, 65 years of age, filed for divorce from her multi millionaire husband, Hugh Owens, 78 years of age, after 40 years of marriage. In 2016, Judge Robin Tolson QC refused her petition, ruling that her reasons for seeking the divorce were deficient, concluding that her allegations were “of the kind to be expected in marriage”.

Now Mrs Owens wants the Supreme Court to overturn the decision and allow her to divorce husband Hugh Owens, 78. Should she have to prove “unreasonable behaviour” ?

Mrs Owens had cited her husband’s “unpleasant behaviour” in the wake of an extramarital affair Mrs Owens had engaged in several years ago and alleged that Mr Owens had made “disparaging” remarks about her in front of family and friends.  Mr Owens disagreed, denied allegations made against him and claimed that he had “moved on” and “forgiven” his wife for having an affair in 2012. Mr Owens was against divorce and said they still had a “few years” to enjoy.

Mr Marshall representing Mrs Owens said Judge Tolson had failed to make “proper findings of fact” and argued that his ruling should be overturned. He indicated that Mr and Mrs Owens were jointly involved in business ventures and owned property in Britain and Holland.

Under English family law, there is only one ground for divorce – that the marriage has irretrievably broken down. As set out in the Matrimonial Causes Act 1975, this ground can be established on the basis of one of five facts: adultery, desertion, unreasonable behaviour, separation for two years if the petition is uncontested, or separation for five years if the petition is contested. Each of these options demands the attribution of blame, or else requires the petitioner to play a significantly long waiting game. Though adultery featured in Owens v Owens, only the cheated-on spouse can give this as a reason on their divorce petition after having satisfied certain criteria. Mrs Owens instead relied on her husband’s unreasonable behaviour but, as described above, did not adequately prove this.

As such, if Mrs Owens is unsuccessful in the Supreme Court, she will have no choice but to remain legally married for a period of five years of separation before her divorce is granted.

Contested divorces are exceedingly rare, accounting for less than one per cent of divorce petitions in England and Wales. In this case Mrs Owens is being compelled to remain married against her will. This is undoubtedly causing quite a stir, throwing the more anachronistic aspects of divorce law into sharp relief and not to forget excessive costs.

Is it therefore time the government stepped up and brought about meaningful reform to our outdated divorce laws?

The introduction of no-fault divorce would bring England and Wales in line with many jurisdictions around the world, including Australia, Canada, Mexico, Sweden and certain US states but in the absence of such reform, Mrs Owens’ legal team will have to rely on their interpretation of existing statute.

They will argue that “the Courts’ emphasis on trying to find that Respondent’s behaviour is in some way ‘unreasonable’ is wrong.” They will argue that such an approach is a “linguistic trap”.   The statute does not require unreasonable behaviour, but simply “behaviour such that the petitioner cannot reasonably be expected to live with the respondent.”

A date for the Supreme Court hearing has not yet been fixed.

Vijaya Sumputh

August 2017