A woman who was refused a decree nisi by the Court of Appeal is attempting to take her battle for a divorce to the Supreme Court.
Tini Owens, who has been married to multimillionaire mushroom farmer, Hugh Owens, for 39 years, filed for divorce in May 2015. Her husband has defended the petition ever since, attesting that their marriage has not irretrievably broken down.
After Ms Owens’ petition was rejected by Judge Tolson in January last year, the decision was upheld in the Court of Appeal this year in a Valentine’s day judgment. Ms Owens’ barrister, Philip Marshall QC, has now lodged an application for permission to take the case to Britain’s highest court.
Her original petition, as quoted in Sir James Munby’s Court of Appeal judgment, claimed that the couple had "lived separate lives under the same roof" for many years and had not shared a bedroom for several years. Ms Owens explained that in February earlier that year she had moved into rented accommodation and she and Mr Owens had lived separately ever since. She felt, she explained to the court, "unloved" and "appreciated".
When the suit came on for hearing on 15 January 2016 before His Honour Judge Tolson QC rejected Ms Owens’ petition, which he described as "hopeless" and "flimsy":
"I am satisfied that the wife has exaggerated the context and seriousness of the allegations to a significant extent. They are all at most minor altercations of a kind to be expected in a marriage. Some are not even that.”
Ms Owens’ subsequent appeal was then unanimously dismissed in a Court of Appeal hearing in February, presided over by Sir James Munby, Lady Justice Hallett and Lady Justice Macur.
Though the question before the Court of Appeal was whether or not Mrs Owens’ petition was sufficient, it was the underpinning law that became the subject of critical scrutiny.
Despite finding that they could not find a legitimate basis to challenge Judge Tolsen’s findings as the law stood, Sir James Munby indicated the inadequacies of current divorce law.
He criticised the "hypocrisy and lack of intellectual honesty" in drafting unreasonable divorce petitions, which must be critical enough to satisfy the courts but anodyne enough so as not to alienate the respondent completely.
However Sir James Munby noted that if the divorce was undefended, as the majority are, the petition would have gone through under the special procedure without any thought of challenge from the court.
Lady Justice Hallet concurred with Sir James Munby’s findings, "with no enthusiasm whatsoever", explaining that "it was the trial judge’s duty, and ours, to apply the law as laid down by Parliament".
Couples who wish to divorce must evidence their marriages’ irretrievable breakdown to the court. If they want an immediate divorce this generally has to be done by demonstrating their partner’s ’unreasonable behaviour’, and formally appointing blame.
Ms Vardag has condemned this as "a barbaric relic of former times"."A change in the English law is fundamentally required", she argues.
There may be hope that the case will force parliament to address the issue.
Ms Owens’ application to appeal to the Supreme Court demonstrates that she is not prepared to stop fighting to end her marriage. Whether Mr Owens will continue to defend the case remains to be seen.