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Why has the Court of Appeal ruled a ‘very upset’ wife must stay married to a man she hasn’t lived with for two years and who allegedly behaved unreasonably towards her?

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Philip Marshall QC, who represented her in the divorce battle, speaks to Legal Cheek

The Court of Appeal has ruled that 66-year-old Tini Owens cannot divorce her husband, 78, who she claims has caused frequent and distressing arguments between them and has made her feel unappreciated during their 40-year marriage.

Tini was, in her barrister’s words, “very upset” when the judgment was handed down. “She feels frustrated by the position she’s found herself in,” 1KBW’s Philip Marshall QC tells us.

Can you blame her? The appellant, Tini, believes her marriage has broken down irretrievably. Citing unreasonable behaviour, she says her millionaire husband, Hugh, prioritised his work over their home life, made her feel unappreciated, suffered mood swings which caused “distressing”, “frequent” and “hurtful” arguments between them, and spoke about her in a “critical and undermining manner.” Because of this, the parties have lived apart since 10 February 2015.

But this was not good enough to amount to unreasonable behaviour, said Judge Robin Tolson QC. He described Tini’s allegations against Hugh as “minor altercations of a kind to be expected in a marriage.”

The Court of Appeal, unwilling to interfere with the first instance decision, refused to overturn Tolson’s ruling on appeal. In Marshall’s words:

The court concluded that the law is what the law is: that fault on the part of one of the parties must be proven. The mere fact that the marriage may be unhappy doesn’t mean you are necessarily entitled to a divorce, unless you can prove the requisite fault.

What constitutes fault for these purposes is one of three things: adultery, unreasonable behaviour or desertion. This according to the Matrimonial Causes Act 1973, which also says parties can seek out a divorce if they have been separated for two years and both parties consent to the divorce. Though Hugh and Tini had been living apart for just a little more than two years by the time their case was heard in the Court of Appeal, the respondent was unwilling to consent to the divorce.

This leaves just one more door open for Tini. Section 1(2)(e) of the act states that parties to a marriage will be entitled to a divorce if they’ve lived apart for five years (no consent required). So, Tini may be forced to wait it out for another three years before her divorce is granted. “She’s 66,” Marshall says, “she doesn’t want to hang around.”

With this in mind, it’s perhaps unsurprising Tini is hoping to take her case to the Supreme Court. Marshall tells us he’ll be applying for permission to appeal this week and hopefully he’ll know pretty soon whether the application has been successful.

Not just interesting on its facts, this case ties into a wider issue: should there be a new ground for divorce, one which doesn’t require proof of fault? Legal Twitter seems to think so:

Despite the appetite for no-fault divorces, their inception, said the appeal court bench, must be handled by parliament and parliament alone. Sir James Munby, who sat alongside Lady Justice Hallett and Lady Justice Macur to hear the case on *irony klaxon* Valentine’s Day, said:

Parliament has decreed that it is not a ground for divorce that you find yourself in a wretchedly unhappy marriage, though some people may say it should be. Such is the law which it is our duty to apply.

It seems the Court of Appeal took no pleasure in having to conclude this. An extract from Hallett’s judgment makes this clear:

With no enthusiasm whatsoever, I have reached the same conclusion on this appeal as [Munby]. It was the trial judge’s duty, and ours, to apply the law as laid down by parliament. We cannot ignore the clear words of the statute on the basis we dislike the consequence of applying them.

While Marshall is poised to apply for permission to appeal, he is hopeful this case will prove catalytic in divorce law reform. In his words:

Many people think the time has come for no-fault divorces. I would certainly support this. I hope that the unfairness of this decision will show parliament why law reform is necessary.

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