News

Our divorce law is based on hypocrisy and a lack of intellectual honesty

  • March 29, 2017
  • By Hunters Law

The case of Tini Owens has caused an outpour of dissatisfaction in the family law world and renewed calls for reform. The Court of Appeal found that Mrs Owens failed to prove that her husband had behaved in such a way that she cannot reasonably be expected to live with him, rejecting her appeal for the right to divorce.

Mrs Owens’ petition accused her husband of prioritising his work life over his home life, not providing her with love, attention or affection, suffering from mood swings and criticising her. Mr Owens defended the petition, arguing that the allegations against him were the stuff of everyday married life and maintained that they still had a future together as a married couple.

The Court of Appeal considered the question of the unreasonableness of the respondent’s behaviour in a subjective way, looking at: (i) in the context of this marriage; (ii) looking at this wife and this husband; (iii) in the light of all the circumstances; and (iv) having regard to the cumulative effect of all the respondent’s conduct. The court then asked itself whether this husband behaved in a way that this petitioner cannot reasonably be expected to live with him.

The Court of Appeal was sympathetic to Judge Tolson’s examination of the case, approach to the law and his judgment, stating that Judge Tolson was entitled to find that Mrs Owens’ allegations against her husband were “anodyne” “lack[ing] beef” and “flimsy.”

The Court of Appeal did, however, have some harsh words to say about the state of the current divorce law, stating “the law the judges have to apply and the procedures which they have to follow are based on hypocrisy and lack of intellectual honesty.”

Hetty Gleave, Partner, commented:

“This decision cuts firmly across the prevailing culture of resolving disputes in a way that does not rack up the acrimony between the parties and therefore costs.  

The days of citing pages of corrosive allegations about a respondent’s behaviour in order to convince a Judge that the marriage really is over were, we hoped, long gone. Now, unless the Respondent agrees the allegations in advance, solicitors will have to tell clients that they really do have to add the extra inflammatory paragraph to “beef” it up, as the Judges put it, if they want certainty.

Divorce is an emotionally difficult and expensive process as it is. We do not need to make it worse and the case for no fault divorce must surely now gain traction from all who work in this area.”

Amy Scollan, Associate, stated:

“The shocking outcome of this case has caused outrage in the family law world, renewing and strengthening calls for reform in this outdated area of law.

The judgment has left Mrs Owens locked in a marriage where she feels isolated, alone and desperately unhappy. She will now have to wait until 2020 to divorce her husband, using a petition based on five years of separation.

Ultimately this is a dangerous judgment, which has the potential to leave the door open for more contested divorces. With the family law profession in uproar, combined with the Court of Appeal’s scathing review of divorce law, what more does the Government need to change the law? No fault divorce is long overdue.”

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