Update: on 8 August 2017, Mrs Owens was granted permission to bring an appeal to the Supreme Court.
A wife who took her battle to divorce her husband to the court of Appeal has lost her bid to end her "intensely unhappy" marriage.
Tini Owens appealed the refusal of His Honour Judge Tolson, sitting in the Central Family Court, to grant a decree nisi. The Court of Appeal, led by Sir James Munby, announced this morning that they would uphold the original judgment.
Unimpressed by Ms Owen’s "hopeless" and "anodyne" divorce petition, Judge Tolsen refused the petition in a judgment last year, after criticising Ms Owens’ petition for “scraping the barrel”. Her allegations, which included silent pub meals and an argument in an airport shop, were deemed to be instances of the kind expected in a marriage.
Sir James Munby sympathised with Ms Owens but found that as the law stands he could not "find a legitimate basis for challenging the judge’s conclusions":
He applied the law correctly and on the evidence before him, he was entitled to reach the conclusions that he did and provided good reasons for them. In my view, the criticisms made of the judge in this court and elsewhere were unwarranted. Sir James Munby went on to intimate that the problem lay with current English law and lamented Mr Owen’s unusual decision to contest the divorce: 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.
Though the Court of Appeal agreed that Mrs Owens’ petition was legally insufficient to support a divorce, the case has cast a spotlight on the fault-based system of English divorce law which generally leads divorcing couples to attribute blame in ’unreasonable behaviour’ petitions to prove that their marriage has irretrievably broken down. Ms Owens will now have to wait for a period of separation to elapse before she can divorce her husband.
Vardags’ barrister John Oxley argues that this case has indicated that change is necessary, but it can’t come from the judiciary:
This case confirmed that the move to no fault divorce can only come from Parliament. The appellate court admitted that it wished it could allow this appeal, but was constrained by the court. No amount of intellectual gymnastics would free them from this bind. The court did, however, send a strong signal that the status quo was inadequate – branding the current law as lacking “intellectual honesty. Until Parliament looks at this afresh, couples will face the Victorian charade of fault based divorce.
The case was heard at the Court of Appeal last month, and the appeal judges announced their decision to dismiss the appeal this morning.
The judgment can be read in full here.