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20 February 2017 0 Comments
Posted in Family, Opinion

Judge denies wife divorce in “loveless marriage”- time for a shake up in divorce law?

Posted by , Trainee Solicitor

Following the recent case of Owens v Owens and with current divorce legislation dating back to 1973, is it time for a shake up within the justice system surrounding the grounds for divorce?

Current legislation

Under current divorce legislation, you must show that your marriage has irretrievably broken down evidenced by of one of the following grounds:

  • Adultery
  • Unreasonable behaviour
  • Desertion
  • Two years after separation with consent
  • Five years after separation

Many people use unreasonable behaviour when they want to get a divorce without waiting for two years. The vast majority of divorces aren’t defended by the other party and those that are usually end with a divorce being granted.

The appeal case in Owens v Owens

Mrs Tini Owens has appealed Judge Tolson’s decision last year to not grant her a divorce from her husband.

Married since 1978, Mrs Owens stated she felt “unloved, isolated and alone” for many years and that her husband continued to berate her over a relationship with another man. She wanted to get a divorce and, under current legislation, her only option was to allege unreasonable behaviour. Her petition set out 27 allegations, many more than an ordinary petition would usually contain, about the way Mr Owens had treated her.

Mr Owens denied the allegations made against him. He said he had moved on and forgiven his wife for her affair and wants them to remain married as they “still have a few years of old age together”.

In his ruling against Mrs Owens, Judge Tolson concluded that Mr Owens was just “old-school” and that snapping and stinging remarks should be expected in marriage.

Mrs Owens appealed that decision to the Court of Appeal which was heard this Valentine’s Day.

The barristers acting at the appeal for each party come down on both sides of the argument. Mrs Owens’ barrister – that it is unreasonable for Mrs Owens to  be “locked in” and unable to divorce without Mr Owens’ consent until five years from the date of the separation. Mr Owens’ barrister – that “unhappiness, discontent, disillusionment” can’t be relied on as facts which prove irretrievable breakdown, and rejecting a change in the law.

We currently await the decision from the Court of Appeal.

The introduction of a ‘no fault’ divorce

Most couples agree the basis in which they will divorce and, if citing unreasonable behaviour, try and keep the allegations as non-contentious as possible but sufficient to obtain the divorce they both want to achieve. Unreasonable behaviour is a subjective test and so is dealt with on a case by case basis.

Our view is that the Owens v Owens case highlights the need for the introduction of a ‘no fault’ divorce in England and Wales, a view shared by many family law specialists. The question of no fault divorce has recently been raised with the government. Sadly the response has been that, whilst the government is committed to improving the family justice system, there are no current plans to change the existing law on divorce.

In today’s society, a court should not be able to keep someone in a marriage they do not wish to be in for five years. There is also a need to review the blame aspect of divorce. It’s obviously in the best interests of all parties to be as non-confrontational as possible and current legislation makes that difficult. A recent YouGov poll shows that 69% of people agree that there should be the option for a no fault divorce. It’s time for the government to catch up with public opinion.

 

If you are undertaking divorce proceedings and need more help and guidance, contact the Family team on

0800 923 2074     Email usfamily.enquiries@roydswithyking.com

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