The divorce of Tini and Hugh Owens has received widespread coverage in the national press and has been described ‘as the most significant divorce case of the century’ so far. By way of brief background, Mrs Owens has been refused a divorce on the basis that she failed to persuade the court that her husband had behaved in such a way that she could not reasonably be expected to continue to live with him. The parties married in 1978 and Mrs Owens petitioned for divorce in 2015. Mr Owens defended her divorce petition and the case was first listed for trial in January 2016. Mrs Owens’ divorce petition was dismissed by HHJ Tolson QC, who took the view that Mr Owens’ behaviour was not sufficiently unreasonable, being in the nature of ‘minor altercations of a kind to be expected in a marriage’ and that Mrs Owens had been over-sensitive.
This decision was upheld last year by the Court of Appeal. It has meant that Mrs Owens has, in the words of Sir James Munby (president of the Family Division), been left in a ‘wretchedly unhappy marriage’ with no way out until she can establish that she has lived separately from her husband for at least five years.
The decision met with widespread dismay amongst many family lawyers, particularly those who are members of Resolution, a national organisation for family lawyers committed to a non‑confrontational resolution of all family issues. For years, Resolution’s Code of Practice has encouraged lawyers to advise their clients, when filing petitions based on the so-called ‘behaviour’ ground, to draft those petitions in reasonably mild form, to avoid the additional acrimony, distress and expense which may otherwise be caused. Resolution and its members have also long advocated and campaigned for a ‘no fault’ divorce in the UK. The crux of the issue is that it is impossible for couples to separate under the current law without providing one of five reasons: the ‘behaviour’ ground pursued by Mr Owens, of adultery; desertion; living separately for two years (where a divorce is only granted with both their consent) or five years (where a divorce can be granted without both parties’ consent). This can mean that an already emotionally difficult process is exacerbated, forcing people who want to dissolve their marriage to ‘point fingers’ at specific causes on the other person’s part.
Mrs Owens has now been granted permission to appeal to the Supreme Court. Such is the strength of feeling on the part of Resolution that it has instructed counsel to draft submissions on points of principle which were lodged in support of Mrs Owens’ application for permission to appeal, and Resolution will now be applying to be joined in the case as an intervener.
It is understood that Philip Marshall QC of 1 King’s Bench Walk will be arguing on Mrs Owens’ behalf, that the court’s emphasis on trying to decide whether Mr Owens’ behaviour was unreasonable or not is wrong, and that there is a ‘linguistic trap’ in the statute: what it actually requires is behaviour such that Mrs Owens cannot reasonably be expected to live with Mr Owens. That is somewhat different, and, ultimately, a subjective test.