The Supreme Court has refused to allow 60-year-old Tini Owens a divorce from her husband of 40 years despite Mrs Owens claiming her husband had behaved badly towards her and she was unhappy in the marriage.
Mrs Owens and her husband Hugh married in January 1978. They separated in August 2013 with Mrs Owens stating that her husband had behaved unreasonably during their marriage in his “continued beratement” of her. She gave examples of this behaviour in her divorce petition, which included criticising her in front of their housekeeper, arguing with her in an airport shop and not speaking to her during a meal. Her husband was not accepting of these criticisms of his behaviour and defended the divorce.
The Judge who dealt with the divorce hearing concluded that Mr Owens’ behaviour towards his wife had not been unreasonable and refused to grant a divorce, stating that Mrs Owens’ allegations were “exaggerated”, “flimsy” and that her husband’s conduct was “of a kind to be expected in a marriage”. Mrs Owens claimed that this decision meant that she was effectively “locked in” to her marriage, and that it was unfair that she would have to wait 5 years before being allowed a divorce without her husband’s consent.
Mrs Owens appealed to the Court of Appeal who also rejected her arguments, and as such the matter was appealed onward to the Supreme Court where today, five Supreme Court judges have unanimously upheld the lower Court’s rulings.
Following analysis of legal arguments, the Supreme Court President Baroness Hale stated that whilst she found the case “very troubling”, it was not for Judges to “change the law”. Lord Wilson indicated that it was a question for Parliament as to whether the law governing entitlement to divorce remained satisfactory.
So, what is the current law on divorce in NI?
The Owens case has given rise to calls for a change in divorce law as it stands in the UK and NI. But what is the current law? I’ve set out some of the main factors that principles legal position on divorcing in Northern Ireland:
1. You need to be married for at least 2 years before you can divorce.
In Northern Ireland, it is by no means the case that any married Tom, Dick or Harry (or their female counterparts!) can get a divorce. Firstly, you need to have been married for at least 2 years before you can petition for divorce. This doesn’t mean that you are compelled to continue living with your spouse for a full 2 years – you can of course live separately.
2. You need to satisfy a ‘ground’ for divorce.
When applying for divorce, you must show that your marriage has ‘irretrievably broken down’ and you must satisfy one of the following grounds for divorce in order to evidence this breakdown: –
- Unreasonable Behaviour -This is where you submit that your spouse has behaved so unreasonably that you can no longer be expected to live with them. Types of unreasonable behaviour are wide ranging and can include physical or verbal aggression, lack of communication, financial control or misconduct and addictions
- Adultery – In order to petition for divorce on the ground of adultery, you need to show the Court that your spouse has committed adultery during the course of the marriage. The person with whom your spouse had the affair can be joined and named in the divorce papers also.
- Two Years’ Separation With Consent – This ground is available where both you and your spouse have lived separately for more than 2 years and your spouse consents to the divorce. You can have been living in the same property during this time but must have lived independently to one another. This can happen where, for example, you both live in the same house but have separate bedrooms and would not cook or clean or spend time with one another.
- Desertion for Two Years – This is proven where your spouse has effectively ‘deserted’ you. This ground is technically difficult to prove and is very rarely relied upon in divorce proceedings.
- Five Years’ Separation – This ground is available when you and your spouse have lived separate for more than 5 years. You do not require your partner’s consent on this ground.
What About A ‘No Fault’ Divorce?
High profile cases such as the Owens case have given rise to a call for a “no fault divorce” to be introduced into the law. It is presumed that a ‘no fault’ ground for divorce would allow unhappy couples to formally end their marriage without either person being held responsible for the breakdown of it. Some say that such an option could ease some of the stress, pain and bitterness that couples often endure during separation. Others believe that to make it effectively ‘easier’ for couples may damage the sanctity of marriage and that couples may not think carefully enough before entering into a marriage if they feel that they can easily divorce if it doesn’t work out.
Both sides of the argument have valid points however in my experience as a lawyer in this area, no divorce is ever ‘easy’ – feelings are hurt, emotions are high and often children are caught in the middle. It will be interesting to see whether steps are made by the government to introduce such a ground in light of today’s judgment.