Court of Appeal refuses divorce plea


A woman in her 60s has failed in her bid to appeal a refusal of her divorce petition.

Tini Owens had been married to her husband Hugh for no less than 35 years when she left the couple’s home in 2013. She filed for divorce, claiming their relationship had become “loveless” and prone to rows and arguments. The marriage had broken down irretrievably she insisted.

In the Court of Appeal, Family Division President Sir James Munby explained:

“The petition set out the statement of her case as follows:

1 The Respondent prioritised his work over home life and was often inflexible in making time available for the family, often missing family holidays and family events. This has caused the Petitioner much unhappiness and made her feel unloved.

2 During the latter years of the marriage the Respondent has not provided the Petitioner with love, attention or affection and was not supporting of her role as a homemaker and mother which has made the Petitioner feel unappreciated.

3 The Respondent suffers from mood swings which caused frequent arguments between the parties which were very distressing and hurtful for the Petitioner who has concluded that she can no longer continue to live with the Respondent.

4 The Respondent has been unpleasant and disparaging about the Petitioner both to her and to their family and friends. He speaks to her and about her in an unfortunate and critical and undermining manner. The Petitioner has felt upset and/or embarrassed by the Respondent’s behaviour towards her as well as in front of family and friends.”

But when her petition came before a family court judge, her husband took a very different view and defended the divorce. Even more unusually, his arguments persuaded the sitting Judge, Robin Tolson, and he refused the petition, describing Mrs Owens’ complaints as “flimsy” and “minor altercations of a kind to be expected in a marriage.”

Unsurprising Mrs Owens appealed this rare ruling. In court her barrister described the decision as “extraordinarily unusual” and argued that the Judge not made proper findings of fact, amongst other claims. These included the suggestion that he had not considered Mrs Owens’ “subjective characteristics” (i.e personality), or the cumulative affect of her husband’s behaviour.

But the Court of Appeal was unpersuaded.  Sir James rejected each of the her counsel’s arguments.Judge Tolson had made clear findings and carried out a proper evaluation. He had taken into consideration both the wife’s and her husband’s personal characteristics. He had been aware of the full course of events and criticised the wife for “cherry-pick[ing]” in her claims.

The Judge’s decision therefore had to stand: as defined by the Matrimonial Causes Act 1973, her husband had not “behaved in such a way that [she] cannot reasonably be expected to live with [him].”

Under current law, the President continued, unhappiness alone was not sufficient.

“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.”

He suggested that family law in its current form may not properly reflect the modern world.

“It is well known that many hold the view that this is not what the law should be, that times have moved on since 1969, and that the law is badly out-of-date, indeed antediluvian.”

Nevertheless, as Judges they were obliged to uphold the law as it stood.

Sir James attempted to reassure Mrs Owens that some options remained.

“It may be of little consolation to the wife but she is not totally without remedy under the present law.”

By 2020 she could make a fresh attempt at divorce on the grounds of five years’ continuous separation (without consent). In addition, the husband might also eventually agree to divorce on the grounds of two years’ separation with consent.

Read the ruling here.

Photo of the Royal Courts of Justice by Devan Bickley via Flickr

Stowe Family Law Web Team

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