Family Law Blog: Getting a divorce granted by the court

By Razia Jogi, Director & Solicitor, Family Law

On 14th February, a date usually associated with romantic love, the Court of Appeal was invited to overturn a decision and grant a woman a divorce that she had previously sought in the Family Court in 2016 but was refused.

Last year, Tini Owens, the wife, sought a divorce on the basis that the marriage to her husband, Hugh Owens, had irretrievably broken down as a result of his unreasonable behaviour. She cited twenty seven examples of unreasonable behaviour which included: being criticised in front of their housekeeper, a row in an airport shop after a holiday, a “silent meal in a local pub” and “stinging remarks” aimed at her during a meal in which a friend was present. The husband refused to accept that the marriage had broken down and he and his wife should be afforded the opportunity to continue in their marriage to “enjoy thirty-odd years of shared experiences”.

Judge Tolson took a somewhat controversial step by refusing the application for divorce. The wife’s allegations were referred to by him as “minor” and “exaggerated”. The husband was described as “old school” and he concluded by saying that the wife’s allegations were “of the kind to be expected in marriage”.

The wife then turned to the Court of Appeal to overturn the decision of Judge Tolson. Three appeal judges, led by Sir James Munby, the most senior family court judge in England and Wales, analysed the case at a hearing on Tuesday. The wife’s barrister argued that Judge Tolson had failed to make proper findings of fact and his ruling should be overturned. He invited the judges to consider the “cumulative effect” of what may be classed as a long list of trivial matters.

What are the grounds for Divorce in England and Wales?

There is only one ground for divorce in England and Wales; the marriage has irretrievably broken down. The Matrimonial Causes Act 1973 specifies that the marriage may be found to have irretrievably broken down if one of five facts can be proved:

  1. Adultery
  2. Unreasonable behaviour
  3. Desertion
  4. Two years separation (with consent)
  5. Five years separation

Divorce law requires the petitioner (the person seeking the divorce) to prove fault by way of unreasonable behaviour, for an immediate divorce.

Unreasonable behaviour?

Whilst Tini Owen cited many examples of behaviour that she deemed to be unreasonable, the judge that dealt with the case in the family court took the view that the examples were “minor altercations of a kind to be expected in a marriage” and an “exercise in scraping the barrel”.

The appeal judges have analyzed the case and arguments put forward on behalf of both parties. Judgement has been reserved.

Tini Owen’s barrister has described her as a “locked in wife”. As the position stands, she remains married to Hugh Owen and unless the decision of the family court is overturned then she will remain married to him for some time yet. The earliest that Tini Owen will be able to divorce Hugh Owen, in the face of his resistance, is five years from the point that they separated. It has been put to the appeal judges that this will be in violation of Tini Owen’s Human Rights to respect for her family life and her right to remarry.

The outcome is eagerly awaited by the parties and also by family law practitioners.

 

Disclaimer: The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice, and the law may have changed since this article was published. Readers should not act on the basis of the information included and should take appropriate professional advice on their own particular circumstances.