Court of Appeal ruling prompts widespread calls for divorce law reform

The Court of Appeal’s refusal to overturn the Central Family Court’s decision not to grant a wife a divorce on the grounds of ‘unhappiness’ has prompted widespread calls for the UK’s outdated divorce laws to be reformed.

In handing down judgement in the case of Tini Owens v Hugh John Owens, the Family Division president, Sir James Munby, whilst acknowledging that the marriage had clearly broken down and that the refusal to grant a divorce would leave Mrs Owens in a ‘very unhappy situation’, argued that the court could not interfere His Honour Judge Tolson QC’s decision to refuse to grant Tini Owens a decree nisi.  

Munby argued that Tolson had ‘directed himself correctly in law’, adding: ‘in relation to the facts, and how they were to be evaluated, he was entitled to find as he did and for the reasons he gave. His reasoning, in my judgment, displays no error of law, principle or approach.’

That conclusion was also backed by fellow Family Division judge, Lady Justice Hallett who argued that she, too, could not find a legitimate basis for challenging Judge Tolson’s conclusions:

‘I very much regret that our decision will leave the wife in a very unhappy situation. I urge the husband to reconsider his position. On any view, the marriage is over. I can only hope that he will relent and consent to a divorce on the grounds the parties have lived apart for a continuous period of two years, rather than force his wife to wait until five years have elapsed.’

As expected the Family Division judgement reignited calls for a fundamental and urgent review of the UK’s divorce laws. Commenting on the judgement, Nigel Shepherd, chair of family group Resolution, said:

‘Nobody should be compelled to remain in a marriage against their will, yet judges’ hands are tied by the current divorce law. Sadly, all too often, couples are forced to play the blame game, and today’s decision demonstrates why this needs to change.’

‘The simple fact is this case should not have been necessary. Only by implementing a no-fault divorce system can we ensure such a situation doesn’t happen again.’

Unfortunately, the government confirmed only last month that it had no current plans to change the existing legislation: however, Justice minister Lord Keen of Elie (Richard Keen QC) did say that the government was never the less committed to improving the family justice system so that separating couples could ‘achieve the best possible outcomes for themselves and their families’, adding ‘whilst we have no current plans to change the existing law on divorce, we are considering what further reforms to the family justice system may be needed.’

Following the Family Division’s judgement Ayesha Vardag, president of divorce specialist Vardags, told the Law Society Gazette that the fault-based divorce principle had caused ‘significant misery and costs’ in Owens v Owens. ‘It does so on a smaller scale for thousands of couples each year. It is time that government stepped in and brought meaningful reform to our outdated divorce laws,’ she added.

Her conclusions were backed by Jo Edwards, partner and head of family law at London firm Forsters, who said that the court’s decision will ‘add grist to the mill’ of many judges and practitioners campaigning for a no-fault divorce system, adding, ‘to change the law would not be about making marriage more disposable and divorce easy: instead, it would enable couples to divorce with dignity and in a way that protects children from the fallout.’

 

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