You may have heard about the case of Mrs Owens who has been denied a divorce by the Court of Appeal. She said that the decision had left her trapped in a loveless marriage and you would be forgiven for wondering how such a situation was possible – seemingly forced to remain married to a husband of 40 years even though she argued that the relationship was beyond repair.
However, such a situation can happen and – evidently – does happen. Our court has to make decisions in line with existing laws. This decision highlights a problem with our divorce laws which some believe are out of date.
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.
There is much misunderstanding about how our divorce laws operate. 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:
- Unreasonable behaviour – your partner has behaved in such a way that you cannot reasonably be expected to live with them any longer
- Adultery – your partner has committed adultery (with someone of the opposite sex) and it is intolerable to have to live with them any longer
- Two years separation by consent – you have been separated for at least two years and your partner actively consents to it
- Desertion – your partner has deserted you for at least two years without your consent (which is rarely used)
- Five years separation – that you have been separated for at least five years but for this there is no requirement for consent.
We find that many people asking advice think that there can be a divorce based simply based upon the fact that they no longer love each other. Unfortunately as you can see – this is not one of the reasons, but there are many people who would like to be able to do this because it creates less animosity than having to perhaps blame each other for what has happened to the relationship.
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, which is what needed to be proven.
This is an unusual case. The vast majority of divorces that come before the courts are undefended. That is not to say that everyone who receives divorce papers want their marriage to end – far from it - but most come to a sometimes painful decision that if their partner does not want to be married to them that they will not stand in their way.
Ask yourself this – if you are married to someone who doesn’t want to be married to you, what is going to be the outcome? As in this case, even if you managed to successfully defend a divorce, at what significant cost – both financial and emotional? It is unlikely to bring you happily back together. In fact, it is more likely to widen the gap between you.
Many who work in this area of law feel that the time has come for a change. But for now we must operate within the laws that exist.
By family and divorce solicitor, Mandy Rimmer