Vardags barrister John Oxley returned as a guest star to BBC Radio 5 Live on Friday evening.
Speaking to Stephen Nolan, John explained several points of divorce law and the process by which people can secure permission to divorce in England and Wales. He also addressed the status of prenuptial agreements in the UK, which have been legally enforceable since the landmark case of Radmacher v Radmacher.
Weighing in on the “very rare and very concerning” Tini Owens case, John described how the judgment has cast a spotlight on a major issue in divorce law.
Just that morning the Court of Appeal had announced their judgment on the case. Ms Owens lost her appeal to end her “desperately unhappy” marriage after a judge refused to grant decree nisi last year, criticising her “flimsy” petition. Judge Tolsen had dismissed her unreasonable behaviour petition on the basis that her allegations were part of the normal ebb and flow of marriage.
John argued that the current system which pushes couples to evidence “irretrievable breakdown” in court by proving that their spouse had behaved unreasonably, was in dire need of change.
Family lawyers have said for a long time that we need to change this law. This was a law that was passed in 1969, that comes out of a report that was written in 1955. It’s completely behind the times.
John noted that the judgment revealed that even the appeal judges had wished to find in Ms Owen’s favour but that it was not possible, as the law currently stands. A change to the law is needed, he said.
Offering his prognosis of what Ms Owens might do next, John explained that unless she chooses to take her case to the Supreme Court, she will simply have to wait. Only those whom the court considers the ‘victim’ of adultery or desertion can petition on those grounds. While if both parties consent to the divorce, they will only need to live separate lives for two years, if Mr Owens continues to contest the divorce, then it will be five years before Ms Owens can end her marriage on the grounds of separation.