Vardags: law when it really matters

Lawyers horrified and disappointed by Supreme Court 'loveless marriage' ruling

By Thea Dunne -

Lawyers horrified and disappointed by Supreme Court 'loveless marriage' ruling

As Tini Owens waited to hear the country’s most senior judges hand out the judgment that could free her from her unhappy marriage, the legal world held their collective breath.

Ms Owen’s highly-publicised defended divorce had presented Britain’s top court with a unique opportunity: to soften the divorce laws compelling couples to evidence their former partner’s unreasonable behaviour for permission to divorce.

Tini Owens, who has been married to her wealthy mushroom farmer husband Hugh Owens for forty years, petitioned for divorce in 2015 arguing the marriage was loveless and had broken down. Her husband disputed that their relationship had broken down and the judge HHJ Tolson QC, subsequently dismissed her petition as “flimsy” and “exaggerated”. The Court of Appeal confirmed the decision, dismissing Ms Owen’s appeal, not without sympathy but holding that there was insufficient evidence to show that the marriage had irretrievably broken down. Ms Owens then took her case to the Supreme Court.

Barrister Philip Marshall QC, who led Mrs Owens' legal team, told justices in the Supreme Court hearing back in May that a "modest shift" of focus in interpretation of legislation was required.

Mr Marshall said: "The evidence... demonstrates powerfully that the effect on her of [Mr Owens'] behaviour - however culpable - is such that she should not reasonably be expected to return to a married relationship with him.

On the morning of the 25th July, the day the judgment was handed down, Head of Vardags Manchester Emma Gill took to BBC Breakfast to explain the significance of the ruling that had sent divorce lawyers “up and down the country” into a “furore”. She explained that divorce lawyers had an “unspoken pact” to try not to sling mud in divorce petitions and that the awaited judgment had real power to change which petitions in future would go through.

As the judgment was handed down in the Supreme Court, the news broke that Ms Owen’s appeal was dismissed. She would have to remain married until 2020 when she might petition on the grounds of 5 years’ separation. In the following 24 hours Vardags directors spoke out on in the national newspapers and across ten TV and radio broadcast interviews to make the case for no-fault divorce.

It was “a win for Mr Owens, but a loss for society”, Emma Gill told the Times.

Tini Owen’s case was rare because Hugh Owens had continued to defend the divorce But while 99% of divorces are uncontested, every divorcing couple is affected by the divorce laws that force couples who want a divorce to lay the blame on one party by evidencing unreasonable behaviour. A necessity that in spite of the informal practice of anodyne petitions, continues to encourage conflict between the divorcing couple. This unnecessary acrimony can lead to bitter and protracted court proceedings and threaten the couple’s ability to effectively co-parent if they have children.

Georgina Hamblin, speaking on BBC News at 5, the day of the announcement, feared that the ruling would lead to more acrimonious litigation for couple going through a divorce:

“That’s what’s really, really scary about it. I’ve been practicing in this area for ten years and even before I was practising at this level, people have worked on the assumption that we don’t need to sling mud at each other to get petitions through. It’s not the right way to start proceedings, so you would lodge an anodyne petition that was enough to cross the unreasonable behaviour threshold but not too severe to really get people’s backs up right at the offset. That whole practice is now in danger. It’s likely now that people will feel the need to put really aggressive particulars down, to make sure you don’t end up like Tini Owens.” Georgina warned that it also might lead to more defended petitions, as partners reject the allegations levied against them, entering into a whole other realm of acrimonious proceedings.

“Vardags and family lawyers across the country …are extremely passionate about seeing the introduction of no fault divorce,” Vicki Mclynn explained on BBC Breakfast the following morning. 

In Scotland, Australia and various states in the US, divorce law reforms have allowed couples to divorce without spousal agreement or proof of wrongdoing on their part, such as the “irreconcilable differences petitions” first introduced to the US in California. Many family lawyers in England and Wales are keen to bring in something similar here.

The consensus was that the hands of the “frustrated” Supreme Court were largely tied; their role being limited to interpreting law. “What’s stopping us from getting to that point?” Vicki Mclynn was asked live on BBC News. “Parliament,” she replied. “We need parliament to intervene”.

Georgina Hamblin was “disappointed but not surprised” by the result. The law is clear and it’s for parliament to change the law,” she reasoned on the Wright Stuff, on Channel 5 later that day.

John Oxley emphasised to Talk Radio how outdated the legislation in question was; "The world has moved on from the 1960s when this Act was written."

What now?

Now that Tini Owens has taken her whole case through the court system, the only question that remains is whether there sufficient political will to induce parliament to act. "The public overwhelmingly back it,” John Oxley told Talk Radio. That is excluding those who even realised that simply wanting a divorce wasn’t enough to get one: "There are huge misconceptions about personal autonomy”, Emma Gill pointed out on Radio 5 Live.

When Ayesha Vardag, Chair of the Campaign for Family Law Reform, lobbied for no-fault divorce at the Conservative Party conference last year, she felt the prospect of reform was more promising than ever. In the past, politicians wouldn’t touch the issue for fear of being accused of being anti-family values. But after Labour included family law reform in their last manifesto, it was no longer political anathema. However, with few votes in it for politicians John Oxley warned that neither politicians nor parliamentarians might feel sufficiently incentivized to push through change.

However, Ayesha Vardag has argued that in the light of the Tini Owen’s case, any delay to reform is unconscionable. “The government may have a lot on its plate but it needs to deal with this problem without delay. Given the broad consensus upon it is hard to excuse their delay,” she was widely reported arguing.

"In my view, the law restricting the right to divorce is a fundamental infringement of the rights to private and family life. I would go further and say it is a form of indenture or slavery. 'This kind of law has no place in a civilised society of equals. It springs from a time when men in England were allowed to beat and rape their wives. We do not allow forced marriage. How can force continuation of marriage? 'The freedom to choose whether one is married or not married is absolutely core to our autonomy. Any law which restricts it is an abomination and a real source of evil within our society." - Ayesha Vardag

If you would like to know more about the issues covered in this article, Vardags offers a free consultation to qualifying individuals.

For high net worth and ultra high net worth individuals or their companies, our confidential enquiry line is staffed 24 hours. Call 020 7404 9390 today.

Thea Dunne

Thea joined Vardags in September 2016. She read English at Trinity College, Cambridge and previously interned at Christie’s Auction House.