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23 February 2017

Owens v Owens: Wife “unloved, isolated and alone” after family court refused to grant divorce

On Valentine’s Day 2017, the Court of Appeal heard the appeal of Tini Owens against an earlier ruling of Judge Robin Tolson refusing to grant her a divorce on the grounds of her husband’s unreasonable behaviour, ostensibly because her allegations were “of the kind to be expected in a marriage”.

Tini and Hugh Owens married in 1978 and now run an extremely successful mushroom growing business in Worcestershire and own a number of properties both in the UK and France.

Wife’s application

In England and Wales, the only ground for divorce is that the marriage has broken down irretrievably. This must be supported by one of five facts, one of which is the respondent’s unreasonable behaviour.

Mrs Owens relied on the fact that her husband’s “continued beratement” of her amounted to unreasonable behaviour.

She was having an affair from November 2012 to August 2013 and moved out of the matrimonial home in early 2015.

Her allegations include that her husband criticised her in front of their housekeeper, made her pick up bits of cardboard in the garden, had a row with her in an airport shop while on holiday, ate a meal with her in silence at a local pub and threw “stinging remarks” her way during a meal with a friend.

Mrs Owens alleges that her husband has treated her in a “childlike way”, as if she “should agree with his will” and that this has left her feeling “unloved, isolated and alone”.

These are the kind of allegations which family law practitioners will be used to seeing and are often found in petitions based on unreasonable behaviour.

Husband’s argument

Nevertheless, Mr Owens chose to defend his estranged wife’s petition and oppose the divorce, something which happens in only 1% of UK divorces.

The 78 year old mushroom farmer told the court that he has forgiven the “misguided” affair and believes they should remain together, stating that they “still have a few years of old age together”.

Judgement at first instance

In a rare move, hearing the case in the Central Family Court, Judge Robin Tolson refused to grant the wife’s petition, finding that her allegations were “exaggerated”, “at best flimsy” and “an exercise in scraping the barrel”.

He also described the incidents relied on by Mrs Owens as “minor altercations of a kind to be expected in a marriage”.

Ruling that the husband’s “old school” attitude was not unreasonable enough to merit a divorce, the judge suggested that Mrs Owens had been “more sensitive than most wives” and that she “exaggerated the context and seriousness of the allegations to a significant degree”.

Commentary

Whilst we await the judgement of the Court of Appeal, this case highlights an ongoing debate in UK divorce law. Is it right that divorce is based on the fault of one of the parties, if the parties do not wish to wait until they have been separated for 2 or even 5 years?

If her appeal is unsuccessful, Mrs Owens is likely to turn 70 before she can obtain a divorce on the fact of 5 years’ separation. The other alternative would be relying on 2 years’ separation, in which case she would need her husband’s consent, so he will need to change his mind.

Many think that it is unfair that people like Mrs Owens can become locked into an unhappy marriage, relying on their spouse’s consent or cooperation to obtain a divorce.

Critics of no fault divorces argue that it is in the public interest to prevent divorces proceeding on frivolous grounds. However, there is also a strong argument that it should be unlawful for someone to be kept in a marriage they have good reason for wanting to leave.

Whilst the decision is awaited it is likely that practitioners will see more detailed and strongly worded unreasonable behaviour petitions (with the aim of ensuring they will pass muster when a judge must decide whether a party has behaved unreasonably) despite this being contrary to current acceptable practice and likely to increase animosity between the spouses.

It is not clear at this stage whether the Court of Appeal will allow Mrs Owens her divorce, in a case which underlines the importance of negotiation and contingency planning in the divorce process.

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