Published by: Will Mercer

Unhappy wife “must remain married” to her husband

The Supreme Court (the highest Court in England and Wales) has today given judgment on the appeal of a wife to previous decisions of the Courts in relation to her divorce. 


The Story


Mrs Owens brought divorce proceedings in relation to her 40 year marriage in 2015 on the basis of her husband’s “unreasonable behaviour” but her husband has refused to agree to a divorce and has defended the proceedings throughout.  This has led to a long legal battle in which the Court has assessed the law in this area.  The law allows a party to a marriage to apply for a divorce on the basis that the marriage has irretrievably broken down by reference to the other party having “behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent.”  Alternatively the party seeking a divorce can rely on the other party’s adultery, a 2 year separation period (providing the other party consents), a 5 year separation period or desertion (which is rare).

The conclusion of the Supreme Court is that Mrs Owens “must remain married to Mr Owens for the time being”.  The Court did not agree with arguments that the law should be interpreted as requiring an assessment of whether the effect of the behaviour in question on the party seeking a divorce was such that they could not be expected to live with the other party.  Instead the Court confirmed that the law requires an assessment of whether, as a result of the behaviour of the respondent, and in light of the effect of that behaviour on the party seeking the divorce, it would be unreasonable to expect the party seeking the divorce to continue living with the other party.

The upshot is that Mrs Owens must wait until 2020 (5 years after the separation) before she will be able to petition for divorce relying on the fact of a 5 year separation (irrespective of whether Mr Owens agrees to the divorce).  The judgment is likely to lead to further calls from family lawyers that there should be a change in the law in this area.  Some are calling for a change to a no fault system on the basis that the current system actively encourages the parties to engage in an unnecessary blaming exercise which only increases ill-feeling between the parties at an already emotional time.

The Supreme Court directed that Parliament may wish to replace the law in this area which has operated since 1973 but it was not for the Court to intervene.  We shall have to wait and see if Parliament has any appetite for such reform.