Tini Owens has petitioned the Supreme Court to appeal the decision of the Court of Appeal as to whether or not she should be entitled to a divorce based on her husband’s unreasonable behaviour.
Case History
In February 2017, Mrs Owens was told by a circuit Judge hearing the final contested hearing in respect of her defended divorce that she had not sufficiently made out the ground of her husband’s unreasonable behaviour.
The Judge found that the behaviour she endured of her husband was no more that would normally be experienced in a marriage of that length.
Appeal
Phillip Marshall QC represented Mrs Owens in her appeal to the Court of Appeal arguing that the process that the trial Judge had adopted was seriously flawed. The grounds of appeal included the Judge’s failure to consider the cumulative effect of the particulars of unreasonable behaviour and the impact that they would have had on Mrs Owens. Further, it was suggested by Queens Counsel that the Judge had failed to assess Mrs Owens subjective characteristics and to apply the law properly to the facts.
Breach of Mrs Owens Article 8 (the right to a family and private life) and 12 (the right to marry and found a family) rights under the European Convention of Human Rights were put forward as secondary grounds in the hope that the marriage would be brought to an end.
Outcome Of The Appeal
All of Mrs Owens grounds of appeal were dismissed despite the court being well aware that this would leave Mrs Owens “trapped in a loveless marriage”.
The Court of Appeal acknowledged that the law under the Matrimonial Causes Act 1973 conflicted with the Family Law Protocol and Resolutions Code of Conduct and said that the law was being applied in a “hypocritical and intellectually dishonest way”. The Judges said it was for parliament to determine whether or not there should be a no-fault based divorce but that separating spouses were fundamentally ”colluding” when petitioning the court on fault based grounds for divorce.
Tini Owens now faces further time consuming and costly litigation in a battle to release herself from a marriage that the court has accepted, on the facts but not in law, has irretrievably broken down. The alternative would be for her to wait until 2020 and petition for divorce on the grounds of 5 years separation.
One can only assume that without the financial resources of Mr and Mrs Owens, this case would not have progressed so far. Statistics show that only 0.67% of divorces issued between January 2016 and January 2017 were defended and it is not known how many ended up in a contested final hearing. However, without reform of the divorce law, Family law practitioners are left in a conundrum as to ensure that the particulars of unreasonable behaviour that they draft on behalf of their clients are not so anodyne that the court will reject them as not unreasonable enough whilst still ensuring that they are anodyne enough to prevent unnecessary acrimony.
Emma Davies is a specialist Family Law Solicitor at Nelsons. If you need advice on separation or any other family related matter, please contact Emma and she will be happy to discuss your circumstances in more detail and give you more information about the services that Nelsons family law solicitors can provide. Emma can be contacted on 0800 024 1976 or by email at [email protected].