30 July 2018
What Has The Tini Owens Case Taught Us? Divorce Law Explained
The majority of us repeat vows on our wedding day believing our marriage will last a lifetime.
But sadly some unions fail to go the distance with statistics showing 42 per cent of marriages end in divorce.
While usually, when a relationship breaks down, both parties agree to the divorce, there are situations when one half wants to continue the marriage.
The case of Tini and Hugh Owens, heard by the Supreme Court recently, is one high profile example.
Judges ruled that Mrs Owens could not officially split from her husband of 40 years because she said their marriage was “unhappy” and must wait five years unless he changes his mind and agrees to a divorce.
What Does The Law Say?
At the moment there’s one ground for divorce - that the marriage has broken down irretrievably and a petitioner would need to prove that by relying on one of five facts. These are adultery, unreasonable behaviour, desertion, two years separation with consent and five years without. The most common facts used are adultery and unreasonable behaviour, which is what we call a fault-based divorce.
Mrs Owens had petitioned on unreasonable behaviour but the High Court, Court of Appeal and now the Supreme Court have found that in this case there wasn’t enough to prove that Mr Owens had behaved unreasonably.
While they have already been separated for three years, the current law states that Mrs Owens must wait a further two unless Mr Owens consents before she can formally end the marriage.
Is It Common For One Party To Refuse A Divorce?
Defended divorces - where only one person wants the marriage to end – are something we rarely come across. We encourage couples to try and keep things as amicable as possible, particularly where there are children involved, and mediation is commonly used to try and help this.
What Is No Fault Divorce?
No fault divorce is where couples can petition for divorce without having to cite adultery or unreasonable behaviour and without a period of separation.
Several other countries, including America and Australia, have already adopted this system and it is something that family lawyers and particularly Resolution – the family organisation committed to non-confrontational divorce, of which Slater and Gordon’s solicitors are members – have long been campaigning for.
Supreme Court judges in the case of Mr and Mrs Owens admitted that they were ‘reluctant’ to dismiss the appeal, but their hands were tied as they could only apply the law as it currently stands. Senior figures such as Sir James Munby, the recently retired president of the high court’s family division, have also voiced support for no fault divorce. It is up to Parliament to change the law and to me, this case is a clear sign that they need to consider this urgently.
I Want a Divorce But My Partner Doesn’t, What Should I Do?
Your options would be to petition for divorce and let the court determine whether the divorce can proceed, which is what Mrs Owens did. Or wait until you have been separated for five years when you can then petition on five years separation and would not need agreement or consent from the other party.
If you’re seeking a divorce, I’m assuming relations with the other party aren’t great but if at all possible, try to speak to your partner and explain why you want a divorce – see if that helps.