06:14, July 25 77 0 theguardian.com

2018-07-25 06:14:09
Unhappy marriage not grounds for divorce, supreme court rules

A woman who wants to divorce her husband of 40 years because she says their marriage is unhappy has lost her case in the supreme court.

Five justices upheld rulings by a family court and the court of appeal that Tini Owens must stay married to Hugh Owens.

Tini, who is in her late 60s, wants a divorce. She says her marriage to Hugh, who is in his 80s, is loveless and has broken down.

She says he has behaved unreasonably and that she should be allowed to end her marriage. Hugh, however, refuses to agree to a divorce and denies her allegations about his behaviour. He says that if their marriage has irretrievably broken down it is because she had an affair, or because she is “bored”.

The couple married in 1978 and lived in Broadway, Worcestershire, the judges heard. Tini petitioned for divorce in 2015 after moving out.

The supreme court justices analysed the rival legal arguments, which revolved around concepts of “unreasonable” behaviour and “fault”, at a hearing in London in May and delivered their ruling on Wednesday.

One, Lord Wilson, said he and his colleagues had ruled against Tini with reluctance. He also said there was a question for parliament in whether the law governing entitlement to divorce remained satisfactory.

Wilson noted that Tini would be able to divorce in 2020, when the couple will have been separated for five years.

His colleague Lady Hale said she found the case very troubling, but that it was not for judges to change the law.

Three three appeal court judges also ruled against Tini last year on similar grounds. They said she had failed to establish in the legal sense that her marriage had broken down irretrievably.

One judge said she had reached her conclusion with “no enthusiasm whatsoever” but that it was for parliament to decide whether to introduce “no fault” divorce on demand.

Another said parliament had decreed that being in a “wretchedly unhappy marriage” was not a ground for divorce.

Tini’s lawyers argued that she should not have to prove that Hugh’s behaviour had been unreasonable, but only that she should not “reasonably be expected” to stay with him.

The case was about the proper interpretation of legislation, they said.

Philip Marshall QC, who leads Tini’s legal team, told the supreme court that a “modest shift” of focus in the interpretation of legislation was required.

Nigel Dyer QC, who leads Hugh’s legal team, disagreed and raised concern about the introduction of divorce on demand.

Lady Hale said: “I have found this case very troubling. It is not for us to change the law laid down by parliament. Our role is only to interpret and apply the law.”

She said she had been “reluctantly persuaded” that Tini’s appeal should be dismissed.

Neither Tini nor Hugh were in court to hear the ruling delivered.

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