The Tini Owens v Hugh Owens divorce saga has been played out publicly at each stage of the proceedings in the last two years.
It has been no different this week with five judges in the Supreme Court hearing Mrs Owens’ challenge to earlier decisions to dismiss her divorce application based on her claim that she could not reasonably be expected to continue to live with her husband.
Mr and Mrs Owens married in 1978 and have grown up children. In 2015 they separated. Mrs Owens raised a divorce action blaming her husband for the breakdown in their marriage. She claimed that it had become “loveless” and “argumentative”. Unusually Mr Owens decided to contest the application on its merits and a judge at first instance was asked to hear evidence to determine whether Mr Owens’ behaviour was so unreasonable that his wife could not be expected to continue to live with him. Despite the 27 instances of her husband’s behaviour cited by Mrs Owens, the judge decided that the application was “flimsy” and dismissed it.
Mrs Owens decided to challenge his decision but Appeal Court judges upheld the earlier ruling and told Mrs Owens that her husband’s behaviour was “to be expected in a marriage” and “that Parliament has decreed that it is not a ground for divorce that you find yourself in a wretchedly unhappy marriage”. One Appeal judge said that she had reached her conclusion with “no enthusiasm whatsoever” but was firmly of the view that Parliament would have to decide whether to introduce “no fault” divorce on demand.
Faced with the prospect of having to wait until 2020 (five years from the separation date), Mrs Owen has decided to invite the Supreme Court to overturn the earlier decision. In the Supreme Court it was argued on behalf of Mrs Owens that she should not have to prove that Mr Owens’ behaviour had been “unreasonable” – only that she should not “reasonably be expected” to remain with him. It was contended that only a “modest shift” of focus in interpretation of legislation was required. Unsurprisingly Mr Owens’ QC disagreed and raised concerns about the introduction in England of “divorce on demand”. He highlighted that Supreme Court Justices should not “refashion” legislation and argued that if divorce law is to be changed then this is a task for Parliament.
It is likely to be several months before the Supreme Court decision is issued. My prediction is that Mrs Owens will remain married and dissatisfied with the outcome. This will bring further pressure on Parliament to introduce legislative change in England & Wales.
The system in Scotland is thankfully more enlightened and has kept pace with social change. As long ago as 2006 legislation was introduced reducing the separation periods required for divorce from five years to two years (without consent) and from two years to one year (with consent) and no “ fault” requires to be attributed to one party or the other. This has resulted in significantly fewer “fault” based divorce applications North of the Border. The outcome of the Owens’ case may encourage the legislature in England & Wales to consider aligning their position more closely with Scots law on divorce.