Owens v Owens: Time for reform of divorce law?

A woman, living next door to her estranged husband, has lost her appeal court ruling, to seek an end to her “loveless and unhappy marriage” which has left her a “locked in” wife. Edward Cooke, Family Solicitor and Partner at Anderson Rowntree, explores this unusual case.

Tini Owens from Broadway, Worcestershire, has been married to her husband, successful mushroom farmer Hugh Owens for 39 years.  She applied to the family court for a divorce, citing some 27 allegations about the way Mr Owens treated her. This included his  'continued beratement' of her which, she said, amounted to unreasonable behaviour, that he was "insensitive" in his "manner and tone" and that she was "constantly mistrusted" and felt unloved.

Mr Owens is opposed to the divorce even though his wife had a year-long affair in 2013 and said they still had a 'few years' to enjoy together in life - even if that meant living next door.

"Minor Altercations"

In a family court ruling made last year Judge Robin Toulson QC refused to grant a divorce petition on the basis her allegations, saying that they were "minor altercations of the kind to be expected in marriage"

Subsequently, Mrs Owens took the case to the Court of Appeal. However, the appeal judges, led by Sir James Munby, the President of the Family Court in England and Wales - analysed the case and upheld the original ruling.

Sir James said: "We cannot interfere with Judge Toulson's decision, and refuse the wife the decree of divorce she sought." He said Judge Toulson had correctly concluded that the marriage had not "in law" irretrievably broken down. However, he did point out that some people would feel unhappiness should be grounds for divorce.

On hearing the decision, Mrs Owens barrister Philip Marshall QC said 'It is extraordinarily unusual in modern times for a court to dismiss a petition for divorce. Mrs Owens is now a 'locked in' wife. She cannot get divorced unless the husband changes his mind and agrees.'

The decision means Mrs Owens will have to remain married, albeit living in a neighbouring Cotswolds mansion. After five years of separation she will finally be eligible for a divorce even if her husband still objects. 

Mrs Owens contended that she had been left in a "wretched predicament", and was locked in a "loveless and desperately unhappy" marriage.

Time for Reform?

Currently in England and Wales it is only possible for parties to obtain a divorce in the first two years after separation based on adultery or behaviour (the latter was used in the Owens’ case).

 After two years of separation, if both parties agree a divorce can be obtained on two years separation, however this requires both parties to agree to this. If one party does not agree, the couple must be separated for at least five years before a divorce can be obtained.

The Owens V Owens case highlights the vagaries and inadequacies in law of the fault-based divorce. If it gets to the point that a party is willing to go to the Court of Appeal to seek a divorce, the differences within the marriage are clearly irreconcilable. Judges’ hands are tied by divorce laws which in the Owens’ case, has resulted in someone being compelled to stay married against her will.

In response to the decision, Resolution's Chair, Nigel Shepherd, said:

“We are today repeating our call on the Government to change the law and introduce no-fault divorce. The reasons for marriages breaking down are often complex and rarely will both spouses agree on them.

"It is simply wrong that, in 2017, anyone who can’t afford to put their lives on hold for two years whilst waiting to divorce is required to apportion blame. And asking judges to rule on who did what is unacceptable in a modern society.

"Successive governments have dragged their heels on this issue for too long. Owens v Owens must be the spark that ignites a fundamental change in our divorce law."

Edward Cooke added:  “the current requirement to cite fault in the first two years after separation is hardly a helpful starting point for couples seeking to resolve issues in a child focussed way, without recourse to the courts.

“The government exhorts couples to attend mediation to resolve their differences, stating that this is the best way to resolve issues (out of court). However, at the same time, it is hugely unhelpful that we still have a divorce law which requires parties to blame one another if they wish to obtain a divorce in the first two years after separation.

“All too often the initial stages of a separation are therefore coloured by allegations or counter-allegations of behaviour, which do nothing to help parties move on in a constructive way, or to focus on solutions to their predicament which are in the best interests of their children.”