Whose Fault is it Anyway?

It is a truth universally acknowledged that a spouse in possession of an unhappy marriage must not be in want of a divorce….or so thought the family law profession.

At the time of their separation in February 2015, Tini and Hugh Owens had been married for 37 years, with two adult children who had long flown the nest.  Some 2½ years later, Tini finds herself having to appeal to this country’s highest court in her ongoing quest for a divorce from Hugh.

To obtain a divorce, a spouse has to establish that the marriage has broken down irretrievably as demonstrated by reference to one of five ‘facts’ – adultery, behaviour, two years’ separation (provided the other spouse consents), five years’ separation or desertion.  Day in, day out, at solicitors’ offices up and down the country, clients have been advised that if they wish to obtain a divorce straightaway (and adultery does not apply) it is possible for them to do so on the strength of ‘behaviour’ particulars which as a matter of established good practice should not be unnecessarily contentious or aggressive and need not be overly detailed or comprehensive.  The content of the behaviour particulars appearing in Tini’s divorce petition will be a familiar sight to family lawyers and indeed many former spouses who obtained their divorces on the strength of such advice – in gainful pursuit of maintaining as amicable a relationship as possible post-divorce, which the profession rightly strives to promote.

The vast majority of behaviour petitions flow unimpeded through the various stages of divorce, no matter how anodyne the particulars, resulting in the dissolution of the marriage by Decree Absolute.  Defended divorce proceedings are rare – and mercifully so.  Costs of such proceedings are high.  Furthermore, it seems inconceivable that any couple subjected to cross-examination over the intricacies of their marriage and behaviour within it would have any semblance of a working relationship remaining at the end of those days in Court; a particularly sad reality in the presence of children at whose school plays, graduations, wedding days, that couple might meet again.

Not so for Tini.

Hugh chose to defend the divorce.  He did not agree that the marriage had broken down irretrievably and, for the time being at least, he has been successful in demonstrating that.

In the Central London Family Court in January 2016, the Court heard contested evidence on whether the marriage had broken down irretrievably by reference to Tini’s allegations as to Hugh’s behaviour.   His Honour Judge Tolson QC dismissed Tini’s petition, finding that her particulars were ‘anodyne’, ‘scraping the barrel’, ‘at best flimsy’ and demonstrative of ‘minor altercations of a kind to be expected in a marriage.’   Public perception at the very least, is that Tini fared no better upon appeal to the Court of Appeal earlier this year.  Outraged press headlines were abound; the public imagination was captured by a 67 year old lady who has been left ‘trapped in a loveless marriage’ by the Court.  Legally speaking, at least pending Tini’s further appeal to the Supreme Court, the family law profession has had to digest the Judgment of the Court of Appeal that its limited powers to overturn a decision did not apply here on the basis that:

  • His Honour Judge Tolson QC was found to have applied the prevailing law correctly (essentially, what actually happened in this marriage and would that objectively be considered sufficient to establish that Hugh had behaved in such a way that Tini could not reasonably be expected to live with him anymore?);
  • the Judge was therefore entitled to have reached the conclusion that he did; and
  • Judges are there to apply and interpret the law, not to make it or change it.

It is clear, however, that the Court of Appeal reached its verdict with the greatest of reluctance – or in the words of Lady Justice Hallett herself, ‘with no enthusiasm whatsoever.’  His Honour Judge Tolson QC himself recognised that the impact of his decision would be to leave Tini and Hugh ‘stymied in lives neither of them wished to lead.’  

Judicial encouragement has been given to Hugh to reconsider his position, but seemingly to no avail.  Tini has been granted permission to appeal to the Supreme Court but absent Parliamentary intervention, her case potentially has a far wider, and unwelcome, impact than solely within her own four walls.   It is therefore to Parliament that the family law profession ultimately now looks.  The campaign for ‘no fault’ divorce to be introduced in this country has been gaining momentum for many years; will Tini’s plight provide the long-awaited final impetus?


Our clients say it all