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25 July 2018 0 Comments
Posted in Family, News, Private Client

Supreme Court rules unhappy wife must stay married – comment from law firm Royds Withy King

Posted by , Partner

The Supreme Court has today ruled that an unhappy wife must stay married, despite living apart from her estranged husband since 2015. Supreme Court judges reluctantly made the ruling, saying that it was for Parliament, not the courts, to reform …

Press release

The Supreme Court has today ruled that an unhappy wife must stay married, despite living apart from her estranged husband since 2015. Supreme Court judges reluctantly made the ruling, saying that it was for Parliament, not the courts, to reform divorce laws.

Will MacFarlane, a Partner in the Family law team at Royds Withy King, said: “The existing law is out-dated and the Supreme Court Justices had no option but to apply it correctly, dismissing Mrs Owens’s appeal.

“It appears that the justices would have liked to assist Tini Owens, but the existing legislative framework provided them with no room to do so. Lord Wilson’s leading judgment made it clear that the appeal ‘generates uneasy feelings’. Lady Hale started her judgment by describing the case as ‘very troubling’’ adding that, ‘it is not for us to change the law laid down by parliament.’

“The law needs to be reformed urgently and Lady Hale’s comments can be read as an invitation to the government to get on and do that.”

The Supreme Court decision – practical implications

The existing law is deeply unhelpful as it requires parties to cite fault if they want to divorce without waiting for two years to elapse with the other party’s agreement, or five years without it. This pits parties against each other from day one, making it more difficult for them to agree arrangements for children or to conclude an agreement on the finances.

Will MacFarlane said: “Defended divorces are rare and most behaviour petitions proceed with the behavioural examples cited being deliberately mild to avoid causing offence. The Supreme Court’s decision may act as a green light to respondents wishing to defend. Conversely, it may lead to solicitors beefing up petitions to include more extreme examples of behaviour to discourage respondents from defending.

“This has two likely consequences. It may increase animosity, making it harder for settlements to be reached and for parties to move on; and it may lead to petitioners unintentionally alleging a criminal offence, forcing the respondent to defend. Section 76 of the Serious Crime Act 2015 introduced the offence of controlling and coercive behaviour, and examples provided by petitioning clients might fall within that offence.”


Will MacFarlane is available for interview and can be reached by email on will.macfarlane@roydswithyking.com.

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