username

password

DNA LegalHind CourtGarden CourtCoram Chambersimage of 4 Paper Buildings logoHarcourt Chambers1 Garden Courtsite by Zehuti

Home > News

Wife appeals against refusal to grant her divorce

The Court of Appeal has heard an appeal by Tini Owens against the refusal of HHJ Tolson QC to grant her a divorce form her husband, Hugh Owens, on the grounds that the marriage had irretrievably broken down by reason of the husband's irretrievable behaviour. The couple have been married for 39 years. Mr Owens denies that the marriage has broken down.

Philip Marshall QC of 1 King's Bench Walk, representing Mrs Owens, said: "It is extraordinarily unusual in modern times for a court to dismiss a petition for divorce." Mr Marshall said that Judge Tolson had failed to make proper findings of fact on the 27 allegations made by his client as to Mr Owens's treatment of her and argued that his ruling should be overturned.

Nigel Dyer QC of 1 Hare Court, who represented Mr Owens, said: "At the moment, as the law stands, unhappiness, discontent, disillusionment are not facts which a petitioner can rely upon as facts which prove irretrievable breakdown."

Sir James Munby, President of the Family Division, hearing the appeal, said: "It is not a ground for divorce if you find yourself in a wretchedly unhappy marriage – people may say it should be."

Hazel Wright,  partner at Hunters incorporating May, May & Merrimans, commented:

"This case has of course hit the news headlines. Partly because of the detail and the near obsession of the public with the private details of unhappy lives. But also because of the high profile given, particularly in recent months, to increasing pressure from lawyers (including the most senior judges) for a change in the law, to allow divorce where neither spouse has to make an allegation of fault – the no fault divorce.

"The case is a reflection of the clash of two forces in our society. The one (Mrs Owens) pushes for a recognition of unhappiness and hopelessness. In our society where we are increasingly open about emotions, where couples are encouraged to go to counselling and to mediation not to the court to sort out differences, her plight will be recognised by many. Where judges have discretion, as here, to consider the individuals in question, they should remember that times have changed. Certainly, views on divorce have changed greatly since this couple (she is aged 65, he is aged 78) married in 1978.

"The other viewpoint is that marriage is 'for better or for worse'. Marriage is sometimes unhappy, and sometimes things go better. It is not enough, in law, for one person just to decide she wants out. Mr Owens does not. He says he has the law on his side. Some other jurisdictions round the world say he is quite right, that the only ground for divorce should be really bad behaviour of the other spouse. There is no law at all for divorce in the Philippines, where marriage really is for life.

"If Mr Owens succeeds in blocking the divorce, it remains to be seen quite what sort of marriage he will have. It seems clear that as soon as she can, Mrs Owens will apply to court for the marriage to be dissolved."

Judgment has been reserved.

For the BBC News report, click here.

19/2/17 (supplemented 21/2/17)