The Blame Game

Posted on: June 10th, 2018

Mrs Tini Owens is in the midst of fighting a ground breaking case in the Supreme Court. Following many years trapped in an unhappy marriage, she left family home in 2015.

Having only lived separately from Mr Owens for a short amount of time, she issued divorce proceedings based on her husband’s ‘unreasonable behaviour’, citing 27 examples in support, including ‘feeling unloved’ and ‘constantly mistrusted’.

However, seemingly content in the marriage, which spanned over 40 years, Mr Owens (a wealthy, retired mushroom farmer in his mid seventies) apparently felt that there was no need for his wife to take such drastic measures and applied to defend the divorce. According to Mr Owens, the couple ‘still had a few years of old age together’.

To the surprise of Mrs Owens and her legal team, the first judge to hear the case refused to grant her a divorce on the basis that Mr Owen’s behaviour was simply ‘old school’ and ‘of the kind to be expected in marriage’, therefore it did not amount to ‘unreasonable behaviour’. 

This left Mrs Owens with only two options; she could wait until 2020 (enabling her to divorce based on 5 years continuous separation) or appeal the judge’s ruling. Mrs Owens opted for the latter approach, but her petition was rejected by the High Court and the Court of Appeal.  

At present, the final judgement of the Supreme Court is awaited with anticipation as it is likely to have a significant influence on future divorce reforms.

The case poses a fundamental question – should you be able to get a divorce without having to prove fault?

At present, the law in England and Wales states that in order to obtain a divorce, there must have been an irretrievable breakdown of the marriage, based on one of five grounds:

  1. Unreasonable behaviour
  2. Adultery
  3. Desertion (after 2 years)
  4. Two years continuous separation (where both parties agree to the divorce)
  5. Five years continuous separation (where only the Petitioner needs to agree to the divorce)

‘Unreasonable behaviour’ and ‘adultery’ are termed as ‘fault based’ grounds for divorce. About 60% of divorces in England and Wales are ‘fault based’. 

Where there has not been adultery, or if the parties have not lived separately for the required time, the party applying for a divorce has little option but to file for a divorce based on their spouse’s ‘unreasonable behaviour’.  Family lawyers generally advise their clients to provide half a dozen examples of such ‘unreasonable behaviour’ for the purposes of this type of petition. Invariably, many respondents do not take kindly to hearing about their own perceived flaws and the resulting fall out can turn a reasonably amicable divorce into a contentious minefield. 

According to a recent survey conducted by the Nuffield Trust, 70% of divorcees who had ‘fault based’ divorces found that this made the process ‘more bitter’. For this reason, many legal advisors are calling for a change in the law, so that couples can divorce without having to prove ‘fault’.  Many believe that this would reduce the acrimony associated with divorce.  

There has been some opposition to this proposed new approach from religious groups, on the grounds that a ‘no fault’ divorce would undermine the institution of marriage and make it too easy for couples to divorce.  

The Supreme Court’s decision in the case of Tini Owens will hopefully provide some clarity and may even force law makers to overhaul the current divorce system.

At Coffin Mew, our supportive lawyers offer practical and straightforward advice on all types of family law matters, including Divorce. 

If you would like further guidance or have any questions please contact one of our family law specialists.