No divorce allowed

27 July 2018

Tini Owens is told she has to stay married and cannot divorce – how can this happen?

Tini Owens who wants to divorce her husband on the grounds she is unhappy has lost her Supreme Court appeal. Tini, 68, from Worcestershire, has been married to her husband, Hugh, since 1978. They have two adult children.

The Supreme Court unanimously rejected her appeal, meaning she must remain married until 2020 when she can then apply for a divorce as she will, by then, have been separated for more than 5 years.

Mrs Owens' solicitor said she was "devastated" by the decision and "cannot move forward with her life".

Under the current law in England and Wales, unless you can prove a marriage has broken down showing that there has been adultery, unreasonable behaviour or desertion, the only way to obtain a divorce without your spouse's consent is to live apart for five years.

Mrs Owens said she had been thinking about divorce since 2012, but did not leave the matrimonial home until February 2015. Her husband has denied the allegations about his own behaviour and said if their marriage had irretrievably broken down it was because she'd had an affair, or because she was "bored".

Supreme Court justices analysed rival legal arguments, which revolved around concepts of 'unreasonable' behaviour and 'fault', at a hearing in May and delivered a ruling on Wednesday 25 July.

One, Lord Wilson, said justices had ruled against Mrs Owens "with reluctance" and it was a case for Parliament.

A statement made by Mr Owens' solicitors said he should not be "unfairly criticised for attempting to save his marriage". "Hugh Owens takes no pleasure from this process which has impacted on the private family life of him and his wife," the statement said.

Supreme Court president Lady Hale said she found the case "very troubling" but it was not for judges to "change the law". The original judge who heard the case found the marriage had broken down, but that Mrs Owens' examples were "flimsy and exaggerated".

The case has sparked a debate about whether divorce laws in England and Wales need to change. There has been call for the law surrounding divorce to be changed for many years. Certainly England and Wales are far behind approaches taken in other countries such as Australia and Scotland where it is possible to obtain a no-fault divorce.

It shocks many people when they find out that, unless they blame their partner, they must wait 5 years for a divorce. Resolution has proposed a divorce procedure where one or both partners can give notice that the marriage has broken down irretrievably. The divorce can then proceed and after six months if one or both parties would still like to proceed, the divorce is finalised.

How many people are impacted each year by the current law? Over 100,000 divorces take place each year. Statistics tell us that 95,000 were affected by divorce in 2013. Now multiply that figure each year and the figure gets very large very quickly.

A private members' bill has been introduced into Parliament by former family judge Baroness Butler-Sloss, seeking a review of the current law. In reality, there is little immediate chance of change in England and Wales.

The content of this article is for general information only. For further information please contact Oliver Gravell or a member of Birketts' Family Team. Law covered as at July 2018.