With ironic timing a woman who says that she is “desperately unhappy” in her 39-year marriage has had her legal battle to gain a divorce rejected by the Court of Appeal Family Division, the day after Valentine’s Day. The issues raised in the case poses the question is divorce law out of touch with modern life?
Mrs Tini Owens (66) told the court that she wanted to end her 39-year marriage to her husband Hugh Owens (78). She filed a divorce petition containing 27 allegations of his behaviour including that he is “insensitive” in “manner and tone”, and that he “constantly mistrusted” her to the extent that she felt unloved.
Mr Owens, on the other hand, believes that the marriage has not broken down and that they have “a few years left” yet. This is despite the fact that Mrs Owens had an affair during the marriage which lasted less than 1 year. Mr Owens defended the divorce petition and His Honour Judge Robin Tolson QC found that the allegations were “of a kind to be expected in marriage”.
Mrs Owens appealed and a judgment was handed down by Sir James Munby, who led two other Appeal Court judges. The petition of Mrs Owens was rejected by the Appeal Court who found “it is not a ground for divorce if you find yourself in a wretchedly unhappy marriage – people may say it should be”.
So how can it be that a woman who is prepared to believe that her marriage is over, and demonstrates this by fighting her way through two court hearings, should be forced to remain married to her husband against her wishes?
The answer, simply, is that our divorce law is out of touch with modern life.
The only ground for divorce in this country is “irretrievable breakdown of marriage”.
It is not enough, however, for a petitioner to simply plead that a marriage has irretrievably broken down, they have to prove that this is so by establishing one of five grounds set down by law, which can be summarised as; adultery, behaviour, desertion for 2 years, 2 years’ separation with the respondent’s consent, or 5 years’ separation.
Most divorce petitions are based upon behaviour, with adultery being the next most common ground. This is because parties to a marriage are either unable or unwilling to wait until either they have been separated for 2 years (which requires the consent of both sides) or 5 years. In this case Mrs Owens had an affair, but could not divorce herself for adultery. This left her with behaviour as the only ground.
Behaviour petitions have to show that the respondent (in this case Mr Owens) has behaved in such a way that the petitioner (Mrs Owens) could not reasonably be expected to continue to live with the respondent. There is a subjective test and an objective test built into this ground. The petitioner has to show that she cannot continue to live with her husband (the subjective element) but that her subjective view must be reasonable (the objective test). This is where the problems start.
The test has always been thought to be quite low. Nevertheless the allegations have to have sufficient weight and gravity to establish irretrievable breakdown. This leads many petitioners to walk a tightrope between making allegations which are sufficient to found a ground for divorce, while at the same time avoiding making allegations which will inevitably offend the respondent unnecessarily. Such offensive allegations are usually a bad start to a separation or divorce, because it means that everybody gets off on the wrong note. Dealing with a divorce is usually only the start of the process, and most couples still have to go on to sort out arrangements about children and financial matters afterwards.
The vast majority of divorce cases go through undefended, even those based on behaviour. Many lawyers follow the family law protocol and show a copy of the petition to the respondent for comment before it is issued, to try and avoid unnecessary offence and to make sure that no defence is filed.
It has been known for reluctant respondents to defend divorce petitions for tactical reasons. They may very well regard the marriage as broken down but do not want to allow the petition to go through to a decree of divorce because they do not want to give the court jurisdiction to deal with financial matters. A court can only make a financial order exercising most of its financial powers when a decree is pronounced. Successfully defending a divorce prevents the pronouncement of a decree and hence the making of financial orders. Normally such a tactic is unsuccessful and merely increases costs and bitterness.
The decision of the family court which went against the unfortunate Mrs Owens may well lead to an increase in petitions being defended for tactical reasons. It will certainly lead to an increase in divorce petitions that contain allegations with real teeth, which may in turn lead to more disputes about finances and children.