Owens & Owens: an expert view after a careful reading of the Supreme Court's judgment: by Tracey O'Dwyer
25 July 2018
No great surprise that the Supreme Court has rejected Tini Owens appeal to be allowed to divorce her husband on the grounds of his behaviour. The court decided that the husband's behaviour was insufficient to establish irretrievable breakdown, although there appears to be a question as to whether the Judge at first instance considered enough of the particulars in the petition. Possibly the outcome might have been different if he had. The Supreme Court's hands were tied by the present divorce laws in this country.
This leaves us with the situation, as the law stands, that even where a marriage has blatantly broken down, people are potentially forced to remain married, until they can petition based on the fact of five years separation. In Tini Owens' case the husband has made it clear he will not agree to a petition based on two years separation, for which his consent is essential. Had Mr Owens not defended the divorce, no doubt it would have gone through, but his defence threw the spotlight on her allegations, which the court decided were not sufficient.
The lobbying for 'no fault' divorce will no doubt gain momentum, and rightly so. For now, we may well see more unpleasant divorce petitions, where people rake through their pasts looking for the worst of the worst for their allegations, rather than using anodyne and non-contentious particulars that the Family Law Protocol and Resolution recommends. This is very unfortunate, but where there is a risk of a defence people will be reluctant to take the risk that their petitions might be too watery. Over to Parliament.....