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The Valentine’s Day appeal and the case for ‘no fault’ divorces

A rather unique divorce case was heard in the Court of Appeal on Tuesday this week, fittingly on Valentine’s Day. Mrs Tini Owens brought an appeal against an earlier ruling which stated that she could not divorce her husband of 39 years.

In a ruling last year, Circuit Judge Robin Tolson refused to grant Decree Nisi (the first decree of divorce) in a contested hearing. Mrs Owens had petitioned on the basis of Mr Owens’ ‘unreasonable behaviour’ which, she stated, caused her to be “desperately unhappy”. For those not familiar with the intricacies of divorce law, the Petitioner must show that the marriage has broken down irretrievably and evidence this accordingly by proving one of five facts (adultery, unreasonable behaviour, desertion, separation of 2 years with the other party’s consent or separation of 5 years).

Mrs Owens made 27 allegations in support of her divorce petition, alleging that Mr Owens was “insensitive with his manner and tone”, that she was “constantly mistrusted” and that she felt “unloved”. Mrs Owens’ witness statement went on to state that “the simple fact is that I have been desperately unhappy in our marriage for many years”.

To the layman, it would seem that this could quite easily be grounds for divorce. However, Judge Tolson ruled that the allegations were “of the kind to be expected in marriage” and refused to grant Decree Nisi, which would have allowed the divorce to proceed.

Unsatisfied with the ruling of Judge Tolson, Mrs Owens appealed to the Court of Appeal and on Valentine’s Day, three appeal judges considered the case at a hearing in London. Amongst the Judges was Sir James Munby (the most senior family court judge in England and Wales). During the hearing, Mrs Owens’ barrister, Philip Marshall QC, pointed out that it was very rare in modern times for a Court to dismiss the petition and added that the Court ought to consider the cumulative effect of many smaller issues. As expected, Mr Owens’ barrister, Nigel Dyer QC, put forward an argument to the contrary, that “as the law stands, unhappiness, discontent and disillusionment are not facts which a Petitioner can rely upon as facts which prove irretrievable breakdown”.

Interestingly, during the case, Sir James Munby commented that: “it is not a ground for divorce if you find yourself in a wretchedly unhappy marriage – people may say it should be”. Whilst the ruling is still awaited, perhaps Sir James’ comments give an indication as to how the appeal will be decided.

Despite the Court of Appeal decision being awaited, this case highlights a very relevant point (one, in fact, which has been debated amongst family lawyers for a number of years now): whether there should be a ‘no fault’ divorce ground in England and Wales.

Given that the primary piece of legislation dealing with divorce (the Matrimonial Causes Act 1973) is some 40 plus years old, there are many people both inside and outside the legal profession that feel the law in this area is due for a thorough review. Certainly in light of modern divorce statistics (almost 1 in 2 marriages now end in divorce) then it is arguable that the law relating to divorce has not kept track of societal changes. Considering the media attention which is being drawn by the Owens case, we hope that Parliament may soon consider debating the possibility of a ‘no fault’ divorce.

Watch this space as we will be posting an update once the Judgment has been published.

This article is not a substitute for legal advice on specific facts and circumstances. It is designed as a free update on the law at the time of publishing. Knight Polson Limited trading as QualitySolicitors Knight Polson accepts no responsibility for reliance on this article and recommend that you seek independent legal advice on your specific circumstances prior to taking any steps.

If you have any questions or would like to discuss the contents of the above article, please do not hesitate to contact us - or 023 8064 4822.


Posted in: Family

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