Unhappily married?… Not grounds for divorce!

A recent Supreme Court decision held that being unhappily married is not grounds to permit a divorce in England and Wales. It should be noted, the judges who did find in favour of the husband did so “reluctantly”. Whether this decision facilitates a no fault ground of divorce is yet to be seen (as seen per Lord Wilson) nor will the merits of either side be discussed at great length in this article. This articles explores the current means of obtaining a divorce.

By way of background, the case at the centre of this issue began with the marriage of Tini and Hugh Owens in 1978. Mrs Owens filed for divorce in May 2015. Amongst the claims were: alleging that Mr Owens prioritised work over home life, his treatment of Mrs Owens lacked love and affection, Mr Owens was often moody and argumentative, he had disparaged her in front of others and that the two had grown apart. These claims were denied by Mr Owens.

Mrs Owens made a claim at first instance, which was dismissed. Her subsequent appeal to the Court of Appeal was also dismissed. The decision in the Supreme Court was Mrs Owens’ last chance within the domestic legal system to establish her claim. She may, potentially, take the claim to the European Court of Human Rights in Strasbourg. However, this remains to be seen. One thing that remains clear is that the law in this area is unsatisfactory, as seen by the intervention of “Resolution”, an organisation that represents 6,500 lawyers working in family law and supports the introduction of no-fault divorce. Further concerns have arisen following recent research led by Liz Trinder of Exeter University in conjunction with the Nuffield Foundation. It appears most of the problems in divorce courts are generated by the law itself. The courts then provide “ineffective, unhelpful and potentially unfair” solutions. Most defended divorces are not attempts to save the relationship but quarrels about who should be blamed. Defended cases cost time, money and emotion that few can face, so settlements often reflect the relative bargaining position of the parties, not the truth of what has occurred.

Typically, the law of divorce within the UK has assigned some form of blame to one of the parties. Whilst these particular grounds are usually agreed on by both partners, it could be argued that the reasons for divorce can further exacerbate the already stressful process for all involved. There are currently five grounds which enable a divorce to be granted, as found in in the Matrimonial Causes Act 1973 at Section 1. The person seeking the divorce must prove that the marriage has broken down irretrievably because:

  1. One of the partners has committed adultery and the other finds it intolerable to live with them;

  2. One of the partners has behaved in such a way that the other cannot reasonably be expected to live with them;

  3. One of the partners has deserted the other for a continuous period of at least two years immediately preceding the presentation of the petition;

  4. Both partners have lived apart/been separated for a continuous period of at least two years immediately preceding the presentation of the petition and both consent to a decree of divorce being granted;

  5. Both partners have lived apart for a continuous period of at least five years immediately preceding the presentation of the petition (in this case, consent is not needed).

Mrs Owens must now remain married until 2020, when the couple will have been separated for five years. The reason for this is clear; none of the grounds legally recognised under the 1973 Act apply to her case. In 2020, Mrs Owens’ case will be line with the requirements of English Law. One could feel at least a slither of sympathy for Mrs Owens. It is important to note that the Government did go down this route in 1995-96 under John Major. However, after a series of amendments and pilot schemes, the non-enacted provisions were repealed.

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