Owens and the argument for no fault divorce

 

The UK’s lack of a no fault divorce option has left a 66-year-old woman “desperately unhappy” as she is unable to divorce her husband of 40 years without one party accepting the blame for the separation.

Although the woman, Worcestershire resident Tini Owens, had an affair, her 78-year-old husband Hugh has refused her attempts to divorce him, arguing instead that their relationship still has several years left in it.

The Guardian reported that Hugh opposed her legal application for a divorce, which was based on grounds of unreasonable behaviour, and that the family court agreed with him, denying Tini’s divorce petition.

She took the case to appeal, where senior judges again refused to grant the divorce at a hearing held on Valentine’s Day.

At the hearing, Mr Owens said that in his opinion, the pair had “a few years” still to enjoy together – even though Mrs Owens wants to separate.

The judges dismissed Tini’s appeal, although they did not take pleasure in doing so, as Lady Justice Hallett, one of three appeal court judges who ruled at the hearing, explained.

She said the verdict was reached “with no enthusiasm whatsoever”, but that she was unable to agree to a divorce that did not assign fault to either party.

“It is for parliament to decide whether to amend [the law] and to introduce no fault divorce on demand; it is not for the judges to usurp their function,” she stated.

Mrs Owens’ representation, Philip Marshal QC, pointed out that it is “extraordinarily unusual in modern times” for a divorce petition not to be granted – and that nearly all 21st century divorces go undefended by the other party.

However, in this case, the decision to dismiss the petition means Mrs Owens faces a wait of up to five years in order to get a divorce due to long-term separation, which is the other acceptable way to prove that a relationship has irreconcilably broken down.

Family lawyers warned that the ruling means future divorces are likely to involve much harsher allegations against the party said to be at fault, as assigning blame based on unreasonable behaviour is the only way to divorce within a matter of months, instead of a minimum of two years of separation.

Mediation is always an avenue to take in seemingly irreconcilable situations – allowing parties to negotiate towards a mutually satisfactory conclusion without the blame and finger-pointing.

Mediation can still help to bridge the gap in a failed relationship, so that at least both parties can discuss the best way to proceed in order to get their separation finalised as soon as is legally possible.

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