Judge Refuses Wife a Divorce

As a Family law expert, this case was of particular interest to me. We are told that Mrs Tini Owens, aged 66, issued divorce proceedings last year based upon the fact of her husband’s, Mr Hugh Owens, aged 78, unreasonable behaviour. In fact, we are told that she made 27 allegations of unreasonable behaviour.

The parties married in 1978 and were described as having led a very traditional life, namely Mr Owens was the bread winner whilst Mrs Owens was the home maker.

Mrs Owens described herself has having been desperately unhappy in the party’s marriage for years and that there was no prospect of a reconciliation. Judge Robin Toison, however, is quoted as saying that Mrs Owens allegations of unreasonable behaviour were ‘of the kind to be expected in marriage’.

This case is unique in that Mr Owens did not wish to separate and denied the allegations raised by his wife.

In the majority of 21^st century divorce cases both parties accept that their marriage has broken down, but in any event, in those circumstances where one party does not wish to separate that same party tends not to seek to defend their spouse’s divorce petition.

So what does the Law say?

The Law states that you are able to get divorced provided that you have been married at least one year and that your marriage has broken down irretrievably. In addition, you will need to prove that your marriage has broken down by asserting at least one of the following facts: [Matrimonial Causes Act 1973].

1. That the respondent has committed Adultery and the petitioner finds it intolerable to live with the respondent;
2. That the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent;
3. That the respondent has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petition;
4. That the parties to the marriage have lived apart for a continuous period of at least two years immediately preceding the date of the divorce petition and the respondent consents to a decree being granted;
5. That the parties to the marriage have lived apart for a continuous period of at least five years immediately preceding the presentation of the petition.

The Law then goes on to say that it is the duty of the court to inquire, so far as it reasonably can, into the facts alleged by the petitioner and into any facts alleged by the respondent.

Is this not what the Judge was doing in this case?

Of course, in the current case, were the Court of Appeal to refuse Mrs Owens a divorce, then she would need to wait a period of two years before being able to petition for a divorce based upon the parties having been separated for a period of two years, however this would be conditional upon Mr Owens consenting, is this likely given the circumstances? Failing which Mrs Owens would need to wait for a period of five years. Does this seem fair?

In addition, were the party’s ‘forced’ to stay married then this would impact upon the financial elements of their marriage as the court cannot approve a financial settlement dividing the assets between the parties until a Decree Nisi has been pronounced within the divorce proceedings. Whilst it is correct that the parties could incorporate their financial settlement within a ‘Separation Agreement’ both party’s must agree to address the division of their assets, and in the circumstances of this case, this appears  most unlikely given that Mr Owens will not agree to the party’s divorcing in the first instance, in consequence this leaves Mrs Owens in a vulnerable position.  In any event a Separation Agreement has its pitfalls and is not an absolute bar to further financial claims which either party could pursue against the other in the future as after all they continue to be husband and wife.

The Court of Appeal is currently considering the evidence in this case and a ruling is expected soon.

In the event the Court of Appeal does not deliver a verdict in Mrs Owens’ favour then the ramifications for her are likely to be severe.

Part of my job as a Family Law Expert is not only to deliver specialist expert advice on family and separation matters but it is also to guide clients through the potential pitfalls which this area of law can often present so that the situation, as currently faced by Mrs Owens, can be avoided.

Kelly Pougher, Associate Solicitor is an Expert in Family Law and is able to offer expert advice on divorce, complex matrimonial finances and separation issues. Kelly is located at our Solihull Office and can be contacted on (0121) 624 4000 or kpougher@thursfields.co.uk.