The ending of a marriage can be an extremely difficult time for all parties involved. However, the separation of a married couple can be even more troublesome when the grounds for divorce are not met in the eyes of the law.
This was clearly highlighted during a court ruling in July 2018, which saw a woman lose her Supreme Court appeal to divorce her husband of 40 years on the basis of his unreasonable behaviour. The husband would not consent to the divorce and successfully defended the divorce proceedings, meaning his wife must remain married to him.
The Owens V Owens case has caused debate surrounding whether changes need to be made to divorce laws in England and Wales, and has resulted in the call for ‘no-fault divorce’.
When seeking a divorce, it has to be proved that the marriage has broken down with one or more of the following five facts given:
- Adultery
The husband or wife has had sexual intercourse with someone else of the opposite sex
- Unreasonable behaviour
The husband or wife has behaved in a way that you reasonably cannot be expected to live with them
- Desertion
The husband or wife has left the other without their agreement, without a good reason, to end the relationship, for more than two years in the past two and a half years
- You’ve been separated for more than two years
The husband or wife must agree in writing
- You’ve been separated for at least five years
A divorce can be applied for if you’ve been separated for at least five years, even if the husband or wife disagrees.
Robert Williams, senior partner at Hutchinson Thomas, commented:
“Under divorce laws in England and Wales, it has to be proved that the marriage has broken down irretrievably. In the Owens V Owens case, this could not be established under unreasonable behaviour even though it was concluded that the marriage had broken down, leaving a wife forced to remain married to her husband.
“The decision to not grant the divorce once again raises questions surrounding reform to divorce laws so that fault doesn’t need to be proved. It could also challenge the good practice of family law solicitors, who may now find it necessary to provide more confrontational details under the ground of unreasonable behaviour.
“Although there has been much debate around this case, the judges of the Supreme Court interpreted and applied the law as it stands – it is for parliament to reform the law.”
For professional advice regarding divorce, contact Robert Williams on 01639 640152 or email robert.williams@hutchinsonthomas.com