You may or may not have heard about in a recent case of law which has been denied a divorce by the Court of Appeal.  This is a very interesting case where the wife said that the decision had left her trapped in a loveless marriage– seemingly forced to remain married to a husband of 40 years even though the relationship was beyond repair.

However, such a situation has happened. The Courts are faced with no choice but to have to make decisions in line with existing laws. It can be argued that in ‘most’ cases the Courts do manage to act in accordance with the spirit of the law.  However, this decision clearly highlights a problem with our divorce laws which appear to be out of date and could benefit from reform.

Mr & Mrs Owens married in 1978 but separated in February 2015. She wanted a divorce and was of the view that her marriage had irretrievably broken down and so petitioned on the basis of Mr Owen’s ‘unreasonable behaviour’. It is reported that she had even had a relationship with someone else.

But Mr Owens disagreed. He denied what she had said about him and responded to the petition by indicating an intention to defend. He didn’t want a divorce. His position was that as far as he was concerned their relationship had not broken down and he felt that they still had years to enjoy. That then meant that Mrs Owen had to prove her case if she wanted an end to it.

Many people are unclear as to how our divorce laws work.  There is considerable misunderstanding about the grounds of divorce and what would suffice in Court.

There is only one viable reason – or ground – for divorce: that the marriage has irretrievably broken down.  However, this must be proven by one of five reasons set out below:

  1. Unreasonable behaviour – your partner has behaved in such a way that you cannot reasonably be expected to live with them any longer
  2. Adultery – your partner has committed adultery (with someone of the opposite sex) and it is intolerable to have to live with them any longer
  3. Two years separation by consent – you have been separated for at least two years and your partner actively consents to it
  4. Desertion – your partner has deserted you for at least two years without your consent (which is rarely used)
  5. Five years separation – that you have been separated for at least five years but for this there is no requirement for consent.

In most cases people just decide that they have grown apart and have simply stopped loving each other.  They just simply want to live separate lives.  Unfortunately as you can see from the list set out above– this is not one of the reasons.  There are many people who would like to be able to end the relationship without blaming the other for the breakdown of the relationship because it would create less animosity.  For Mrs Owen she chose the unreasonable behaviour and it is reported that she actually made 27 allegations about the way in which she was treated by her husband within their marriage which included the fact that she felt unloved.

A contested hearing took place last year  in which the court listened to arguments and counter arguments about who had done what – which from an emotional view point (and a financial one as well)  must have taken its toll. The court had to decide whether they should be divorced and took the view that in this case the divorce should be refused.  It was reported that the behaviour Mrs Owens was complaining about was ‘the kind to be expected in marriage’ and was essentially a long list of trivial matters. Her petition was dismissed.  And on being denied the opportunity to be released from the marriage – she took her case to the Court of Appeal.

The Court of Appeal listened to what was clearly an unhappy state of affairs for Mrs Owens but felt that that it couldn’t interfere with last year’s decision and reaffirmed that this couple should remain married and Mrs. Owens could not continue with her divorce. The Judges were of the view that their marriage had not – in law – irretrievably broken down, this is what needed to be proven.

This is a rare case. Most divorce cases that come before the courts are undefended. This does not mean that most people who divorce had wanted to end their marriage – not at all – most people come to this painful decision after much deliberation and acceptance that if their spouse no longer wishes to be with them, they would not keep them confined to the formalities of a marriage.  They simply choose not to stand in the way of divorce and accept that they would have to free the other partner.

We might ask ourselves the following question: If you were married to someone who doesn’t want to be married to you any longer- what would you do?  Would you force someone to remain married to you?  As in Owen case – even if you legally managed to remain married, at what cost would this be possible? How would this impact on you emotionally? What about the financial impact on both parties?

The simple answer is that the outcome of a defended divorce petition is not likely to make either party happy.  In fact, if anything it may make both parties lot more unhappy and distant.  In most cases the Courts are able to offer a fair and reasonable outcome based on the existing law.  However, it is understandable that many who work in this area of law feel that the time has come for reform. But for now the Courts must operate within the laws that exist.

Our divorce lawyers and solicitors are experts in dealing with all aspects of divorce. If you need divorce advice, our team are ready to help.

Ansham White – Family Law Solicitors in London