Divorce law crisis as unfaithful wife forced to stay in her ‘unhappy’ 40-year marriage
SUPREME Court judges yesterday piled pressure on Theresa May for a radical new ‘divorce-on-demand’ law.
They made a direct call to the Government to act after turning down an appeal from a 68-year-old woman who has been refused a legal end to her 40-year marriage.
Five justices of the Supreme Court said that Tini Owens had failed to demonstrate unreasonable behaviour by her husband, who maintains their relationship – which has been dragged through the courts for two years – can be saved.
They said she must stay in her loveless marriage for another two years.
But the judges said the treatment of Mrs Owens under divorce laws that date back to 1969 made them ‘uneasy’, and Supreme Court President Lady Hale said she was only ‘reluctantly persuaded that this appeal should be dismissed’.
Passing judgment, fellow judge Lord Wilson said: ‘Parliament may wish to consider whether to replace a law which denies to Mrs Owens any present entitlement to a divorce.’
The push from the country’s highest court follows years of campaigning by senior judges and lawyers for a ‘no-fault’ divorce reform that would allow a husband or wife to walk away from their marriage without the consent of their spouse and without any need to show poor behaviour had led to the breakdown.
But critics say that the current divorce laws – which mean someone like Mrs Owens must wait for five years after leaving her husband before her marriage can end – act as a necessary brake on divorce and influence couples to try to preserve their marriages.
They also accuse lawyers of hoping to cash in on a lucrative new boom in divorce. Divorce rates, which more than doubled in the years after the 1969 laws made divorce cheaper and easier than previously, have been falling in England and Wales for more than 20 years.
The Owens case was one of a tiny proportion of divorces in which a couple go to court to argue over whether their marriage should end. Lord Wilson said that in 2016, 114,000 people petitioned for divorce but only 17 cases were contested in court.
Lord Wilson said research found no example other than the Owens case in which a husband or wife had successfully blocked a divorce when their spouse wanted one.
Mrs Owens and her 80-year-old husband Hugh married in 1978 and have two adult children. In 2012 she talked to lawyers about divorce, and then began an affair. However she went back to her husband, before leaving him in February 2015.
The couple, said to have built up ‘significant wealth’ through his business, own a manor house in a Gloucestershire village. Mrs Owens now lives in a house they own next door to the manor.
The law says a couple can be divorced after two years of living apart if they both agree, and after five years if only one wishes to divorce. Otherwise they must show fault on the part of their spouse – adultery, desertion, or unreasonable behaviour.
The Supreme Court said Mrs Owens had not shown that it was unreasonable to ask her to continue to live with her husband. In court she had complained that he had put work before home life; he treated her without love or affection; he had been moody and argumentative; had disparaged her in front of others; and she had grown apart from him, feeling unhappy, unappreciated, upset and embarrassed.
But in the first hearing of the case a judge called her examples of her husband’s behaviour ‘flimsy’ and said she had ‘significantly exaggerated their context and seriousness’. Lord Wilson said there were no legal grounds for a divorce but added: ‘There is no denying that the appeal of Mrs Owens generates uneasy feelings.’ But, he said, ‘uneasy feelings are of no consequence in this court’.
Lady Hale said of Mrs Owens’ complaints: ‘Those who have never experienced such humiliation may find it difficult to understand how destructive such conduct can be of the trust and confidence which should exist in any marriage.’ Mrs Owens is now likely to wait until she can win a divorce on the grounds that she has been separated for five years, a point that will come in February 2020.
Her solicitor Simon Beccle said many would find the Supreme Court decision ‘ hard to understand’. He added: ‘Mrs Owens is
‘Moody and argumentative’
devastated by this decision which means she cannot move forward with her life and obtain her independence from Mr Owens.’
But barrister Hamish Dunlop, for Mr Owens, said that his wife had been ‘ essentially advocating divorce by unilateral demand of the petitioner; ignoring the court’s duty to have some objective regard to the respondent’s behaviour’.
The push for reform to end the principle that a spouse is at fault if a marriage breaks down is now gathering pace. A senior retired judge, former President of the Family Division Baroness Butler-sloss, has already laid a Bill in the Lords that provides for divorce on demand after a nine-month waiting period.
Professor Liz Trinder of Exeter University, who assisted Lady Butlersloss, said: ‘The supreme Court’s decision is legally correct, but I believe it is morally wrong. Marriage is based on consent, yet Mrs Owens must live as the equivalent of a chained wife for five years before she can legally divorce.’
Critics of easier divorce warned against liberalising the law. Thomas Pascoe of the Coalition for Marriage said: ‘Around 10,000 couples a year begin divorce proceedings but do not finish them, in large part due to the protections and cooling-off periods built into current law. The drive towards nofault is a desperate attempt at business development by a legal industry suffering as fewer couples choose to divorce each year.’
A spokesman for the Ministry of Justice said: ‘We are already looking closely at possible reforms.’