U.K. Supreme Court rules woman must stay in unhappy marriage

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Her lawyer has described her marriage of four decades as "loveless and unhappy."

But this week, the U.K.'s Supreme Court denied Tini Owens' request for a divorce — and told her she must stay in the marriage she no longer wants. 

Owens likely won't be able to divorce until 2020 — when the couple will have been living apart for at least five years. 

Under U.K. law, a person can only get a divorce without their spouse's consent in cases of adultery, abandonment or if their partner "has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent."

Tini and Hugh Owens' case has been moving through the courts for years. And it has some lawyers, like Nigel Shepherd, questioning the country's divorce laws — and calling for change. 

Shepherd is the head of family law at the U.K. firm Mills & Reeve. He spoke with As It Happens guest host Laura Lynch about why he thinks the law is outdated and a change is overdue.

Here it part of their conversation.

Mr. Shepherd, when you learned Tini Owen's had lost her case, how did you feel for her?

I felt really upset and disappointed for her. This was the final court that she could appeal to. And sadly, the judges, Supreme Court justices, although they would have liked to have done so, with a heavy heart, they felt they couldn't overturn the previous decisions.

The judges made the ruling "reluctantly" apparently. What were they feeling reluctant about?

They were reluctant that they couldn't find a way to interpret the current law in a way that would have given Tini Owens her divorce. It went through the Court of Appeal — three judges there and it went through five Supreme Court justices. I think everybody involved in the case has been struck by the fact that Ms. Owens has had to suffer. And I think it's very difficult to hear that kind of case without feeling real empathy with her dilemma. 

The courts can interpret the law, they can't change the legislation that's behind it. And that's what's needed here, and the judges have made it quite clear, what's needed here is parliament to step in and actually reform the current law. 

For our listeners who perhaps haven't been following the case, what were Tini Owens' reasons for wanting a divorce?

She said the marriage had broken down. But it's not enough to say that the marriage has broken down. You have to establish that by proving one or more of sub-grounds, if you like, and the ground that she went on was behaviour.

The judge that heard the evidence just didn't think that her 27 allegations of what she said Mr. Owens had done was enough for him to conclude that she couldn't reasonably be expected to carry on living with him, which is actually the legal test in our jurisdiction.

Can you give us some sense of what was on that list?

There were a number of things. One example, they were coming back from holiday. He wanted her to buy a gift for their housekeeper. She went off and she couldn't find the gift that he had suggested that he buy so he berated her, quite publicly, in the airport.

It was certainly not a one-off. That was just one of, as I say, 27 examples. There was a whole series of things, some of which were more petty than others. But part of this case was about the cumulative effect of a pattern of behaviour over quite a long period of time. 

Now, it's fair to say, that he denied this. He said this was part of the rough and tumble of a 40 year marriage. The judge said, "maybe he's a little old school." That's what the first judge said, and, "maybe she's a little over sensitive." And that's why he felt that she hadn't got over that threshold that we have under our current behaviour divorce petition law.

What I would like to see personally, what the family justice organization that I've recently chaired — which is called Resolution — wants to see, is a system which removes all of that fault in the sense of taking it out of the process. You have a simple notification system.

One or both of you says, at the beginning of the period, I think the marriage is broken down. If after a period of time, whether that's six months or nine months, we suggest six months, one or both feel the same way, then you get your divorce. No adultery, no behavioural allegations required.

Just curious to know, do you know her personally?

I don't. I met her at the hearing in May and she was very dignified. I think it's fair to say that to take it up to the Supreme Court, I think she's doing it as much for those that follow her, as for herself, personally.

She says, I don't want other women to have put up with what I've had to put up with and if my case highlights the cause for reform and acts as a catalyst — then she will feel that even though she may not have been personally successful, she has achieved some good out of it.

Written by Katie Geleff and John McGill. Interview produced by Katie Geleff. Q&A edited for length and clarity.