Woman denied divorce: is it time to change our outdated divorce laws?

Tue 21st Feb 2017

Coodes Solicitors’ Family Lawyer Sarah Evans comments on a recent court of appeal hearing that has shed light on an unusual case in which a Judge refused to allow a couple to divorce.

“Mr Hugh and Mrs Tini Owens have been married for nearly 40 years. In that time Mrs Owens formed a relationship with another man and subsequently moved out of the matrimonial home and into another property owned by the couple. Mrs Owens then applied for a divorce based on Mr Owens’ unreasonable behaviour.

“In order to seek a divorce you must satisfy the court that your marriage has irretrievably broken down based on one of five facts. Those facts are unreasonable behaviour, adultery, two years separation with consent, desertion or five years separation. The person seeking the divorce, known as the petitioner, must provide sufficient details to the court to enable the Judge to find that one of the five facts has been established.

“In Mrs Owens’ case, Mr Owens decided to contest the divorce proceedings. He felt they should remain married in order “to enjoy 30-odd years of shared experiences”. It is exceptionally unusual for a divorce case to be defended. In fact, under 1% of divorce cases are defended. Defending such a case is a costly exercise and rather unlikely to result in a marriage being rekindled.

“Mrs Owens’ divorce petition suggested, amongs other things, that Mr Owens continued to berate her over her affair, criticised her in front of others, was insensitive and argued with her following a holiday taken together. Mrs Owens said she had been desperately unhappy in her marriage for many years and there was no prospect of a reconciliation. Despite these allegations, the Judge, Robin Tolson, concluded that she was not entitled to the divorce. He found that her allegations did not amount to unreasonable behaviour by Mr Owens and were “minor altercations of the type to be expected in a marriage”. He referred to her case as “an exercise in scraping the bottom of the barrel”.

“This is a very unusual decision. Within the 1% of contested divorce cases only a fraction are denied by a Judge. There is little to be gained in forcing someone to remain married if they wish to divorce and Judges tend to recognise this.

“It is also understandable that many people will not wish to cite lots of unpleasant reasons for the breakdown in their marriage when the simple truth is often that they have fallen out of love with each another with neither particularly at fault. In that case it is very unfortunate that our adversarial system requires that a fault must be found if the Petitioner wishes to divorce immediately rather than waiting five years. The law as it stands does not allow for a marriage to be bought to an end simply due to the unhappiness of the parties.

“Despite this, I always encourage Petitioners to cite the minimum amount of allegations necessary to satisfy the court that the marriage has broken down. This tends to promote good relations between the divorcing couple and allows the divorce to proceed smoothly. It generally also provides a good grounding for discussing matters around finances and children in a reasonable way.

“Mrs Owens has now taken her case to the Court of Appeal and a decision is currently awaited as to whether she will be granted a divorce or not. If her appeal fails then she will in all likelihood have to wait for five years to petition for divorce without her husband’s consent.

“This case starkly highlights the need for a ‘no-fault’ divorce option, which I have previously argued for. The current system may well leave Mrs Owens, and possibly others like her, locked in a loveless marriage with no prospect of escape for quite some time.”

For more information or advice on divorce or any Family matters, contact Sarah Evans at Coodes Solicitors on 01579 347600 or sarah.evans@coodes.co.uk

Tue 21st Feb 2017

Sarah Evans

Head of Family

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