In this blog, Family Law in Partnership associate Hannah Greene examines the controversial case of Owens v Owens in which the Court of Appeal refused an application for a divorce by Mrs Owens on the grounds of the unreasonable behaviour of her husband.

Were the case of Owens v Owens to be presented as a riddle, or a university essay question, it would perhaps read as:

“HHJ Tolson QC found that the wife “cannot go on living with the husband” and continued “he claims to believe that she can, indeed that she will, but in this in my judgment he is deluding himself”, but HHJ Tolson QC does not grant the wife a divorce; why and how?”

This is the riddle that has been asked and answered by the Court of Appeal in Owens v Owens [2017] EWCA Civ 182 in its decision to uphold HHJ Tolson QC’s original ruling.

It was an established fact that the marriage had broken down, but the Court of Appeal, led by Sir James Munby, President of the Family Division, upheld HHJ Tolson QC’s refusal to grant Tini Owens a divorce on the grounds of the unreasonable behaviour of her husband, whilst acknowledging that this left Tini Owens “trapped in [a] loveless marriage”.

Mrs Owens originally provided 5 allegations of unreasonable behaviour in her petition filed on 6 May 2015. This was amended to include a further 27 allegations of Mr Owens’ unreasonable behaviour on 28 October 2015 to divorce Mr Owens after Mr Owens filed his acknowledgement of service contesting the divorce on 10 August 2015.

In her original petition to end the 39 year marriage Tini Owens detailed that she had been left feeling “unloved, isolated and alone”.  She stated that she had moved into rented accommodation on 19 February 2015 and the pair “had been living separate and apart since that date”, having lived separate lives under the same roof for many years previous.  Mr Owens contested that the marriage had broken down and countered each of Mrs Owens’ allegations of behaviour.

A large proportion of HHJ Tolson QC’s hearing was spent cross examining the two parties on the contents of the 27 allegations. Mr Owen denied every single one under cross examination, describing each incident as having been taken out of context or exaggerated, stating:

“I think she had an ulterior motive for collecting all these, what, to my mind was a collection of molehills which she felt suited her purpose to build up into mountains because she had aspirations outside of our marriage”.

The Law Society’s current Family Law Protocol encourages practitioners to include brief particulars when drafting a petition reliant on unreasonable behaviour. The Family Procedure Rules 2010 state that the particulars must both evidence the unreasonable behaviour that is being relied upon to enable the petitioner to be entitled to a divorce but be as brief as possible. The Protocol also encourages practitioners to send a copy of the draft petition to the respondent prior to filing it with the court, with a view to agreeing the draft particulars. It is not uncommon for practitioners to request that the respondent themselves comes up with the particulars they are comfortable to have in a petition, to further minimise the conflict between the parties that the allegations required by the law can cause.

The point of this is to try as much as possible to avoid antagonising the other party as you start proceedings, so there is a tightrope to walk over having allegations serious enough to satisfy the court and mild enough so as not to drive a destructive wedge between the parties at the point at which one is attempting to open negotiations with a view to sensible resolution.

The law, as it currently stands, requires the petitioner to point a finger and blame their spouse for the breakdown of their marriage if they have not been separated for two years. Divorce and separation is an emotionally traumatic experience even for the most civil pair of ex spouses, and then on top of this emotional trauma, the law requires that one party blames the other for the breakdown of the relationship, thus absolving themselves of responsibility in the ending of the relationship. A respondent to this can understandably, and certainly in this case, take this as something of a “slap in the face”

It is incredibly unusual for a petition to be defended. Who would want to stay married to someone who doesn’t want to stay married to them? It appears that the answer to this question is: Mr Owens. As I mention above, HHJ Tolson QC openly referred to Mr Owens as deluding himself.

However, as Judge Tolson took pains to point out, and was supported by the Court of Appeal in this, the wife’s petition as it pertains to the requirements of the law, was “flimsy as best”. He went on to describe the particulars in the petition as “hopeless”, “anodyne” and “scraping the barrel”. The 27 examples of behaviour provided by the wife were ones she had drawn from a diary, and claimed were indicative of more widespread poor behaviour from the husband. However, Judge Tolson pointed out that it was only in his power to make a judgment on the specific particulars which were within the petition, and due to the aforementioned flimsiness of the particulars he could not find in the wife’s favour.

A further argument was made that Mrs Owens’ Article 8 (respect for family life) and Article 12 (right to marry) Convention rights were being contravened, but these arguments have been dismissed by both Judge Tolson and the Court of Appeal. It appears that although there is a right to marry under the Human Rights Convention, there is nothing within the legislature to imply there is a converse right to divorce.

The Court of Appeal has been entirely transparent in their motives for upholding Tolson’s judgement and have heavily criticised the law as it currently stands. They have accepted that their judgment comes at personal cost to Tini Owens, who is now trapped in her marriage until she can fulfil the criteria for 5 years separation without consent.

Lady Justice Hallet was pointed in her criticism of the law, proclaiming that she reached her conclusion with “no enthusiasm whatsoever” and that judges are not able to “ignore the clear words of the statute on the basis [they] dislike the consequences of applying them.” She placed the onus on Parliament to “decide whether to amend section 1 and to introduce “no fault” divorce on demand”.

The question now, is whether Parliament will take notice and change the statute. I’d venture that Owens v Owens is an ill-timed appeal if its intention is to publicise that a change in the law is needed and to push Parliament into legislative action. In the current political climate I suggest this will not be near the top of the Parliamentary agenda, and will be put to one side whilst the laws of England and Wales are untangled from EU law.

This article first appeared in Family Law, May 2017 and is reproduced by kind permission.

Read our blogs on No Fault Divorce for further debate on this controversial issue:

One Step Back for No Fault Divorce

“I just no longer want to be with them”: the call for No Fault Divorce

Hannah Greene is an associate at Family Law in Partnership. She advises on all aspects of divorce, children and cohabitation matters. Contact Hannah at E: hfg@flip.co.uk or T: 020 7420 5000.