The Supreme Court has “reluctantly” ruled against a woman seeking a divorce to free her from what she describes as a loveless marriage.
The five justices said they had misgivings about dismissing her appeal and have asked Parliament to consider reforming the divorce laws.
The highly publicised case involved Tini Owens, aged 68, and her husband Hugh Owens, who is 80.
The couple have been married for 40 years and have two adult children. When the marriage broke down, Mrs Owens asked for a divorce, but Mr Owens refused.
Currently, the five reasons for being granted a divorce by the courts are:
The couple have lived apart for more than two years and both agree to the divorce
The couple have lived apart for at least five years, even if your husband or wife disagrees.
Having left the matrimonial home, Mrs Owens issued a divorce petition based on her husband’s “unreasonable behaviour” as defined in the Matrimonial Causes Act 1973 (The Act).
She alleged that the marriage had broken down irretrievably and that Mr Owens had behaved in such a way that she could not reasonably be expected to live with him.
The petition alleged that he prioritised his work over his home life; was moody and argumentative; treated her without love or affection; and disparaged her in front of others. It pleaded 27 examples of such behaviour, very few of which were denied.
Nevertheless, the husband defended the petition, arguing that the behaviour cited did not satisfy the requirements of the Act.
The judge at the original hearing found that although the marriage had broken down, the pleaded examples of the husband's “unreasonable behaviour” were too flimsy to satisfy the Act. The case went all the way to the Supreme Court, which has upheld that decision.
It held that the judge had correctly directed himself to apply an objective test, namely what a reasonable observer would make of the allegations? The judge had been entitled to take the view that the husband’s behaviour did not satisfy the criteria for behaviour so unreasonable that it justified divorce.
However, the justices said the case generated “uneasy feelings”. They pointed out that since the passing of the Act in 1973, marriage had come to be recognised as a partnership of equals, and expectations of whether it was reasonable to expect one spouse to continue to live with the other had changed.
They said Mrs Owens’ appeal had to be dismissed but suggested that Parliament should consider whether to replace a law which denied her entitlement to a divorce.
The case has reignited calls for change from campaigners who want the divorce laws to be modernised.
Following the ruling, a Ministry of Justice spokesman told the BBC: "The current system of divorce creates unnecessary antagonism in an already difficult situation.
"We are already looking closely at possible reforms to the system."
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Case Citations: OWENS v OWENS (2018) UKSC 41 SC (Lady Hale PSC, Lord Mance JSC, Lord Wilson JSC, Lord Hodge JSC, Lady Black JSC)