Tini Owens, 66 has appealed to the Court of Appeal against a ruling by a Family Judge that she was not entitled to a divorce based on the unreasonable behaviour of her husband.

Mrs Owens alleged that examples of her husband’s behaviour included constantly berating her for having an affair in 2012, criticising her in front of their housekeeper, making her pick up bits of cardboard in the garden, arguing with her at Cancun Airport and refusing to speak to her during a meal in a pub.

HHJ Robin Tolson QC described her allegations as ‘exaggerated’ and ‘at best flimsy’ stating that they were ‘minor altercations of a kind to be expected in a marriage’ and an ‘exercise in scraping the barrel’. He also found that she was ‘more sensitive than most wives’ and that she had ‘exaggerated the context and seriousness of the allegations to a significant degree’.

The parties married in 1978 but have been living apart since February 2015. If Mrs Owens is not successful on appeal, she would have to remain married to her husband until they had been separated for five years, unless he agreed to the divorce prior to this.

Hugh Owens, 78 says that he has moved on and forgiven his wife for her affair and wants them to remain married as they ‘still have a few years of old age together’. Mrs Owens insists she feels ‘unloved, isolated and alone’.

Mrs Owens’ barrister, Philip Marshall QC has highlighted that she is now locked in the marriage and cannot get divorced until 2020 unless her husband changes his mind and agrees. Mr Marshall QC also argued that unreasonable behaviour does not have to be violence, threats of violence or other extreme behaviour – a cumulative effect of more minor conduct can justify a finding that Mrs Owens can no longer reasonably be expected to stay with her husband. Part of Mrs Owens’ case is that refusing to grant the divorce violates her Human Rights to respect for her private and family life and her right to remarry.

However, Mr Owens’ barrister, Nigel Dyer QC told the court that HHJ Tolson QC was entitled to reject the wife’s case and it might be said that ‘elderly parties to a 40 year marriage might be more robust in their relationship with each other’.

A vast number of divorces are granted on the basis of unreasonable behaviour each year. In undefended divorces it is common practice for solicitors to draft concise and un-inflammatory allegations of unreasonable behaviour and it is extremely rare for a Judge to refuse to grant a divorce on the basis that the allegations of behaviour made are not sufficiently serious, even if the divorce is defended (as in this case) where the allegations would be examined more closely.

This case highlights the absurdity of our antiquated divorce law contained in the Matrimonial Causes Act 1973 which is now nearly 45 years old. It will be clear to anyone that Mrs Owens considers her marriage has irretrievably broken down and she desperately wants to divorce her husband, but she has been told she cannot do so. As a result, there will be increased calls to reform the law and introduce a ‘no-fault divorce’. However, this week the government has confirmed it has no current plans to change the existing law on divorce.