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This week, unusually, there have been plenty of family law stories making the headlines. The Court of Appeal yesterday reluctantly turned down the appeal of a couple who want the law to recognize civil partnerships for opposite-gender couples, Today the Supreme Court has looked at the legality of the financial barriers imposed by the last government on people wishing to bring in overseas-born spouses to the UK.

However, we’re going to concentrate on a story that caught the attention of the media for a couple of days: the news that a woman is appealing against a court judgment that refused to grant her a divorce. Tini Owens, who wants to end her 39-year marriage to her husband Hugh, asked the Court of Appeal to overturn a decision that she had not adequately shown that the marriage had irretrievably broken down. This is a very unusual case, so we thought we’d look at what seems to be going on.

In the modern age, divorce is ubiquitous. Generally, if a marriage breaks down and starts to make one or both people unhappy, and attempts to make things better do not yield fruit, divorce is a likely outcome. However, as in so many areas of family law, the law lags behind the way society has come to function.

In England & Wales, we still have the fault-based divorce system that came into being at the end of the 1960’s. In order to obtain a divorce, it is necessary to show that the other person has been at fault in creating the irretrievable breakdown of the marriage (unless you have been separated for two years and the other spouse consents to a divorce), and that this has happened in a particular manner in accordance with the legal categories available. One person still ‘petitions’ for divorce against the other.

Most divorces go through on the basis of the other spouse’s adultery or ‘unreasonable behaviour’. If these are not appropriate, those wishing to divorce need to wait 2 years after separation, and have the agreement of the other spouse, to start divorce proceedings. If this consent is not forthcoming, the spouse wishing to divorce must wait 5 years. (It is also possible to divorce on the basis of the other spouse’s desertion, but this is very rare.)

The vast majority of divorce petitions go through the court process these days without a judge ever seeing the papers– instead they are checked over by a court worker. This is because in most cases, the other person accepts the terms of the divorce; their response to the petition is filed accordingly, and the documentation is cleared for the grant of decree nisi. These are uncontested divorces. They make up 98-99% of the court’s caseload.

Mrs Owen’s problems were caused by an ‘unreasonable behaviour’ petition. Although we don’t yet know the full details of what happened in this particular case as there is no judgment available, we can say that solicitors are used to preparing petitions for divorce on the least aggressive allegations of unreasonable behaviour possible, in order to make the end of the marriage cause the least amount of pain; indeed, Resolution solicitors generally try to get allegations agreed as acceptable before filing. However, if the other spouse decides to defend a gentle divorce petition alleging that their behaviour has been unreasonable, that can be problematic. As here, the petitioner can be required to prove their case, and to show – on the balance of probabilities – that the behaviour was so bad as to make it unreasonable to expect her to live with him any longer.

There’s no judgment yet, but media reports of the hearing are available because defended divorces are heard in public (very public, potentially, due to their rarity.) The Telegraph, for intstance, reports that:

‘the judge described her allegations against her husband as “exaggerated” and “at best flimsy”, claiming they were “minor altercations of a kind to be expected in a marriage” and “an exercise in scraping the barrel”.

Judge Tolson also found that Mrs Owens was “more sensitive than most wives” and that she had “exaggerated the context and seriousness of the allegations to a significant degree”.’

Leaving aside the feminist perspective on the legal system keeping a woman in a marriage from which she is adamant she wants to escape, this still seems like a remarkable decision in the twenty-first century. But is it legally correct? That’s the question that the Court of Appeal has to grapple with now, and it is an interesting one. Thankfully, due to the resources available to the former couple involved, they have a couple of QCs to assist them in understanding the arguments.

The publicity attracted by this case is remarkable, and is serving to highlight the ridiculous state of divorce law in our country. It is the height of irony that this week has also brought forth a statement from the government on the introduction of no-fault divorce, for which Resolution has been lobbying for many years:

“The government is committed to improving the family justice system so separating couples can achieve the best possible outcomes for themselves and their families. Whilst we have no current plans to change the existing law on divorce, we are considering what further reforms to the family justice system may be needed.”

If you’ve got any questions about divorce or any other matter of family law, please give us a call on 01223 443333 and make an appointment to speak to Adam, Simon, Tricia, Sue or Gail.