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?

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 Toulson 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 Toulson’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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26 Comments

Anonymous

I have no strong feelings either way about this.

The mass triggering the decision caused is pretty funny though.

(13)(20)
Blacker the Sequel of the Prequel

Ah, this reminds me of my award-winning (Morrisons silver label) submissions in divorce cases:—

It’s as the exceptional scholar, Hadaway, once asked: “what is love?” Well, love is not divorce – I can say that for certain – Milud I pray that the jury will decree naysay on the nisi.

(4)(0)
Just Anonymous

The current period – 5 years separation – is far too long, and plainly derives from a far more conservative time, where divorce itself was probably still seen as ‘morally wrong.’

However, I still think a period of separation should be required – however, that period should be a matter of months, not years.

Divorce is, in general, a traumatic and life-changing event. People need some time to adjust to, and plan for, the new reality. Clearly, 5 years is excessive. However, it would be wrong I think to go to the other extreme and allow a spouse to get divorced with effectively no notice to the other side (given that we’re talking here about a ‘side’ that hasn’t done anything wrong).

(11)(4)
Bumblebee

Unfortunately, society tells little girls (and to a lesser extent little boys) that marriage is all about love and commitment, and that it is something to which all young women should aspire.

Of course, that’s not the case in the slightest. Marriage is a legal construct with legal connotations.

I feel for the wife, but ultimately it’s no different from making any other type of bad bargain. She’s not compelled to live with her husband, nor is she compelled to have sex with him. As for the financial implications and social connotations – well, she should have known what she was getting herself into when she signed the marriage certificate.

In my view, it’s not so much the rules on divorce which are antiquated and outmoded, but rather the very notion of marriage itself.

There again, perhaps I’m just a bitter and cynical old spinster.

(13)(6)
Anonymous

If he’s a millionaire, it sounds like she’ll do pretty well out of the eventual divorce.

(5)(3)
Anonymous

Do we think she doesn’t want to wait three years to be able to spend her divorce settlement?

(3)(3)
Anonymous

Well, she may have pesky matters such as eating and paying rent to take care of.

(6)(0)
The Bar Necessities

Yes, but she could still apply under s27 Matrimonial Causes Act 1973 while she is waiting for the time to elapse. While this is not ideal, it couldn’t be said that the wife would suffer undue hardship because she can’t bring a financial remedy application.

(0)(0)
Linklaters Trainee

She’s only divorcing him now for his money. Old lad should spend it all or give it away before the s**t gets her hands on it!

(7)(9)
The Doc

They’re now removing Plum’s comments? On what possible basis?

(0)(0)
The other Doc

Beats me. Bumblebee said basically the same thing. Maybe its because he mentioned Islam?

Hey prof. Say what you said again without mentioning Islam?

(0)(0)
Not Amused

Family Division actually applies law.

Country has collective heart attack from shock.

(5)(4)
Anonymous

NA makes snarky comment.

Country has collective heart attack from shock.

(4)(3)
The Bar Necessities

It isn’t apt to describe marriage as a ‘legally binding contract’. A better analogy would be a declaration of status, from which certain legal consequences flow. There are no significant rights or duties that are imposed by the marriage itself and certainly none that are enforceable against the other.

The difficulty has arisen because it is the practice of family solicitors to work on the assumption that petitions will almost never be contested and the judges will grant decrees in any event. This, combined with the Resolution (formerly the Solicitors Family Law Association) guidance, leads to solicitors drafting weak and anodyne petitions that fail to plead sufficient or particularised grounds.

The aim is to avoid conflict and hostility, and there is a good deal of logic in trying not to blame the respondent too much for the breakdown of the marriage. An aggressive approach to the petition often sets the more important financial remedy proceedings off on the wrong foot.

Undoubtedly, a change in the law is needed. That could be true ‘no fault’ divorce, or it could be cutting down the period of separation-without-consent to a year and separation-with-consent to 3 months or so. Both HHJ Toulson at first instance and the CoA have undoubtedly got the law right, which suggests that the Supreme Court will probably decide to grant permission and then use the case as a vehicle to engage in a light spot of sophisticated judicial legislating.

(5)(4)
Anonymous

Seems like a shitty first instance decision – can’t imagine that the facts presented made it impossible for the judge to make a finding that he had behaved unreasonably. I feel so sorry for this woman. And what a selfish weasel of a husband – clearly he is simply resisting any financial settlement.

(8)(3)
Anonymous

If your spouse has left you and tells you that s/he no longer wants to be married to you, there is absolutely no legitimate reason to refuse. Absolutely awful behavior.

(5)(0)
Leisha007

wow some of these comments – i think this is what is called everyday sexism. so it’s all about ‘her’ getting her mitts on ‘his’ money? long marriage. it’s ‘their’ money. while many posts say law outdated (it is in respect of fault divorce imho) many posts show even more outdated views…….

(4)(4)
Anonymous

It isn’t ‘their’ money if the truth is that he actually earned most of it, you prize plum.

I see you come from the 1950s school of thought – husband keeps wife, so when they divorce its only fair she gets half. It’s 2017 darling, and women work too now.

(5)(4)

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