The recent decision from the Court of appeal, which upheld the original judgement by Judge Tolson QC, has created a huge amount of uncertainty for those seeking a divorce. Judge Tolson's original decision to dismiss Tini Owens’ petition for a divorce effectively said to Mrs Owens' that her husband's alleged behaviour was not so severe that she could not be 'reasonably expected to live with [him]'.

The Court of Appeal judgement contained some of the details of the examples used by Mrs Owens in her divorce petition, as well as her later amended petition. What was surprising about the examples was that they were spread over a wide span of time. In some incidents, the alleged behaviour had occurred years previously. The standard legal approach would be to cite an example from the last 6 months of the couple living together as husband and wife, and then to include a dated specific example that demonstrates the effect of the alleged behaviour on the petitioner. This effectively, and to use the words in the CoA judgment, is a good way of 'beefing up' the petition.

The refusal of Judge Tolson to grant the wife a decree left her – and her husband- in a suspended state, neither living together as husband and wife, nor divorced and free to live their own lives as individuals. The Court of Appeal also acknowledged that their decision to uphold Judge Tolson’s original decision does indeed 'leave the wife in an unhappy situation', and that currently, the only remedies available to her are either the husband will reconsider his position and consent to a divorce on the grounds of 2 years separation, or that the wife must wait until 2020 (when she would be 69, and her husband 81) and petition on the grounds of 5 years separation, for which the consent of the respondent is not required.

It seems that the judges involved in the Owens' case have had their hands tied by the law as it currently stands. But as they themselves acknowledge, Mrs Owens now finds herself in an awful position. She is in the unenviable position of being a woman living in the 21st century, in a rich and democratic country, yet whose life is effectively in limbo because she has gone against the will of her husband.

The extraordinary thing is that while the judges have agreed that the marriage has broken down, they have still determined that Mrs Owens is not entitled to a decree to legally end the marriage, because they don't think it has irretrievably broken down, despite the evidence she has presented in court. This judgement leaves Mrs Owens' essentially 'locked in' a loveless and broken marriage. President of the Family Division, Sir James Munby observed, 'Parliament has decreed that it is not a ground for divorce that you find yourself in a wretchedly unhappy marriage, though some people may say it should be.'

Divorce in recent years has become increasingly a paperwork shuffling exercise, and it appears that by the end of this year, applying for a divorce will simply be no more than a tick-box exercise on a screen. So this seemingly ardent scrutiny of one divorce petition does seem out of step with the move towards making divorce more accessible by moving the application process towards online forms. Of course, the law has to be applied, and those seeking a divorce need to ensure that the application is within the legal definitions, as set out in the Matrimonial Causes Act 1973, but which are now almost 50 years old, and look increasingly out of step with our modern lives.  

Today’s Court of Appeal Judgment has again lead to many legal professionals to call for a 'no fault' divorce, citing this particular case as underling the 'urgent need' for 'no fault' divorces. I can’t see how 'no fault' divorce would have aided Mrs Owens, as the current 'no fault' Divorce Bill states very clearly that both parties must consent to the divorce. It is very clear that Mr Owens does not consent to a divorce, indeed it is stated in the original judgment that Judge Tolson found, 'He [the husband] claims to believe that she can, indeed, that she will [live with him], but in this, my judgment, he is deluding himself.'

'No fault' divorce would remove the need to make accusations about alleged behaviour of one spouse. Some unreasonable behaviour petitions are exceedingly nasty and are sometimes used as a vehicle on which to create as much pain and distress as possible to the respondent. There is clearly a need for less contentious divorce proceedings without having to wait at least 2 years, and so, perhaps, 'no fault' divorces are the answer.  

It is a curious situation where one party declares themselves to be 'deeply unhappy' in a marriage for many years, has moved out of the matrimonial home and are living a separate live from their spouse – to the outsider the marriage has clearly and irretrievably broken down – yet the judicial system has decided that a divorce is not to be granted, due to behaviour that is, according to Judge Tolson, 'at most minor altercations of a kind to be expected in a marriage.'

Mrs Owens is apparently intending to seek permission to appeal, and so, perhaps, the legal system will finally have to face the problem of divorce once and for all.


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