Please Sir, can I get divorced?

together or apart - divorce

The widely reported case of Tini Owens (66), who is seeking to overturn a decision by Judge Robin Tolson to reject her request for a divorce from her husband Hugh, aged 78, has brought into sharp focus the continued debate about our fault-based divorce system.

So, why has Mrs Owens found it so difficult to obtain a divorce?

At present, anyone seeking a divorce may do so only on the ground that the marriage has broken down irretrievably. In order to prove this is the case, the petitioner, the person asking for the divorce, has to demonstrate that one or more of five facts applies.

Unless the parties have lived apart for 2 years, the only facts upon which the petitioner can rely is that either their spouse has committed adultery and they find it intolerable to live with them or, as in Mrs Owens’ case, that her husband had behaved in such a way that she could not reasonably be expected to live with him.

Mrs Owens is said to have made 27 allegations about the way Mr Owens treated her, including allegations that he was “insensitive” and that she was “constantly mistrusted”.

Now you may ask why someone would want to remain married to a spouse who, clearly, didn’t want to be married to them, but Mr Owens decided to resist the divorce, denied the allegations and said that they still had a “few years” to enjoy.

After hearing evidence from both, Judge Tolson concluded that the allegations were of “the kind to be expected in marriage” and refused to grant Mrs Owens the divorce she sought. Mrs Owens has appealed and so the court of Appeal will now have to decide whether she must remain married to Mr Owens or not.

This is a truly exceptional case for two reasons

  • Firstly, almost every divorce petition proceeds uncontested.
  • Secondly, in over 30 years as a Family lawyer, I have never known a judge to refuse to grant a divorce to a party who is prepared to go through the pain of defended divorce proceedings on the basis of their spouse’s behaviour.

Such proceedings are held in an open court, which means members of the public and the press are able to attend, and all the gory details published for all to see, to say nothing of the legal costs involved.

Reform of divorce law

We will have to wait and see what the Court of Appeal make of it, but Mrs Owens’ plight arguably supports those calling for the early reform of divorce law. Family law experts have been calling for the reform for many years, but those calls seem to have fallen upon deaf ears.

This follows a recent announcement by the House of Lords spokesman, Lord Keen of Elie, that although the government was committed to improving the family justice system, there were no current plans to change the existing law on divorce.

Our specialist lawyers can help with all aspects of relationship breakdown, including disputes in relation to finances and children. For more information, please contact our Family team who would be happy to advise you.

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