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What right does the state have to prevent a divorce when the relationship has broken down?

Today, the Supreme Court announced its Judgment in the case of Mr and Mrs Owens, where Mrs Owens was appealing against the decisions of two previous courts to refuse her a decree of divorce.

The Court of Appeal had previously concluded that in reality the marriage between Mr and Mrs Owens had broken down irretrievably but felt it was not in a position to agree that the original trial judge was wrong.

The Supreme Court had to decide correct interpretation of Section 1 of the Matrimonial Causes Act 1973, and in particular the correct interpretation of what is known, colloquially, as “unreasonable behaviour”.

The Act provides that if Mrs Owens was able to satisfy a court that her husband had behaved in such a way that she could not reasonably be expected to live with him, then she would be entitled to a divorce.

The Supreme Court decided that the correct approach was:

  1. To decide what the husband did or did not do.
  2. Then assess the effect of that behaviour on his wife.
  3. To make an evaluation as to whether, as a result of that behaviour and its effects upon her, to expect her to continue to live with him would be unreasonable.

The court’s view was based upon previous cases that had been decided over a long period of time and, while they expressed reservations about the way in which the original trial judge dealt with the hearing, they could not overturn the decision.

Nonetheless, the President of the Supreme Court, Lady Hale, gave sufficient misgivings to come to the conclusion that it would be best for the appeal to be granted and the case heard all over again.  However, that was not something which either of the parties wanted and so she agreed that the appeal would have to be dismissed.

Mrs Owens will, therefore, have to wait until February 2020 to start proceedings for divorce all over again based upon the fact that she and her husband will, by then, have been separated for 5 years and Mr Owens will not be able to defend those proceedings.

The ramifications of this judgment are enormous.

Firstly, it is going to make it much more tempting for husbands or wives to defend divorce proceedings.

Secondly, if that is correct, the whole process is going to be far more expensive.

Most importantly of all, the emotional costs and the emotional damage to not only the parties but to their children are bound to be increased considerably.

Parliament must now urgently look at the state of our law which dates back to 1969 and introduce “no-fault divorce” without any further delay.

It is a complete farce when the Court of Appeal accepts that Mr and Mrs Owens’ marriage had broken down irretrievably but Mrs Owens cannot obtain a divorce.

Lastly, we all need to consider, what right the state has to prevent a couple divorcing when the marriage has clearly broken down.

Graham Coy

25 July 2018

Graham was based at the firm's London family law office. His career as a family law specialist has spanned three decades. He is an experienced advocate, mediator and arbitrator who has worked in all areas of family law.

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  1. Spike Robinson says:

    “What right”… That’s cherry-picking, in the extreme. The state leaps in with both boots to determine every aspect of how a divorce will proceed and the effects are often still painfully in force decades later, backed by the whole state apparatus of coercion and enforcement. So it’s a bit rich to be throwing toys out when once in a very blue noon the state – far more by accident than design – the state weighs in to put more than a tissue paper thin barrier between marriage and divorce for once.

  2. Helen Dudden says:

    It’s a ridiculous state of affairs you have to commit adultery to get a divorce, prove your former partner is not worthy of your continued relationship.
    This takes us back many years, when, it was very beneficial you destroyed the credibility of another human being.
    This is a very sad day, for the need to improve an out dated approach to divorce.

    No wonder international courts have this approach, I still point out the case in Vienna on child access. Again, inhuman and degrading, prove mental incapacity, and what ever you can to win unfairly. No wonder there is issues with child access.

  3. Bu says:

    Getting married in the UK is not a good deal for men, that is why less and less are doing it, because men have realised its rigged to help women, but cant say this as it’s not politically correct.
    They separated in 2015, so she only has around 18 months or so to wait now. i am sure she will make sure he doesn’t asset strip in this time.The clock is ticking, and I am sure she will be smiling when the 5 years are finally up.
    The law, I personally think, is fit for our times. It’s a period of time meant for reflection and reconciliation. The problem is that we now live in an “instant” society where “longevity” is a dirty word

  4. Terry james Scales says:

    Helen. I’m of the opinion you have no idea how crucial marriage has been to the birth and stability of any civilization that has ever existed.
    Once a civilization denigrates marriage to the point we have in the Anglo Saxon, west we know that the civilization is nearing the end of its life cycle.
    the supreme courts verdict is not regressive it’s progressive it’s a step forward, we should learn from history. Children require stability that comes from their biological parents, where both sacrifice themselves to each other and their child. We have lost the ability to look beyond our selfish desires, we cringe at the word responsibility, we have normative narratives that have become common parlance, like kids are resilient and don’t stay together for the kid’s
    What utter malevolence.
    I’m sorry, marriage is a life long commitment we ought not to be holding the back door open to divorce, we should be promoting marriage and how society requires it to survive.

  5. Helen Dudden says:

    I disagree. If there is a situation where it’s impossible to live with your partner, it’s hardly fair to make comments, on what someone should or should not do.
    My faith encourages marriage, but it also accepts it does not always work.
    We are a throw away society, I wrote recently on the subject of working mothers. To live in today’s society it is very costly. To have home is costly. The strain of maintaining a relationship is immense.
    No, I feel it’s partly due to the attitude of society, this Government does not have a right to intrude into personal relationships.
    Most importantly, I feel with international law, this too should take into account the need to treat divorce and relationship breakdowns with compassion and understanding. We should have no need to air the great unhappiness that comes with the end of a relationship.

  6. Linda Namniece says:

    The state in France promotes marriage and the family unit unlike the UK.

    Marriage contracts are essential : they allow to prepare your matrimonial regime (régime matrimonial) for a serene life together. Marriage contracts are chosen according to the spouses’ initial situation, the property they intend to acquire and their career needs. The notaire will help you choose the most suitable marriage contract for you.

    Marrying implies making commitments to each other. While the article 212 of the French Civil Code are read aloud at the city hall (which is the marriage registry office) stating that the spouses are to be faithful and provide mutual help and assistance, th­e matrimonial regime sets the rules that apply to the spouses during marriage and also afterwards in the event of separation, divorce or death.

    Everything you buy during your marriage belongs to both of you, even if you pay for it alone. However, everything you owned before marriage is yours only.

  7. Terry james Scales says:

    Helen, I agree with your analysis that divorce should be less adversarial, I believe this approach would increase the likelihood of reconciliation.
    I do have the right to say what someone should or should not do but i don’t have a tight to enforce it.
    You see its not as simple as how you describe that if one person does not want to live with the other anymore no one should force them, are you OK with forcing in the main the man to leave his home that he loves and is part of his identity, because that is what happens, there is no level playing field.
    Twice I have lost homes now, my first wife after two years of me residing in the marital home after we had divorced still managed through the family courts to take it off me even though she was in a relationship and had been for a year and half and that her new partner had a home himself and she resided there with him, at the time our daughter was three, see the playing field is not level.
    I’m currently living on my friends sofa separated again with a three years-old son who I was alienated from for five months, I was thrown out of my beautiful home I had a week to find somewhere else, hence my friends sofa, this nightmare predicated on allegations with no substance to them quite the contrary, I was in possession of evidence of who was the perpetrator, but because I was without a solicitor due to financial constraints, I was walked all over.
    The judge enforced a draconian occupation order me, another stopped me seeing my son on zero evidence, zero because I did nothing wrong, I was just accused of wrong doing.

    • JamesB says:

      It is said that divorcing someone is the worse thing you can do to someone that is legal. So you calling out lawyers in the ‘divorce industry’ trivializing it is fair enough.

  8. Helen Dudden says:

    I agree, divorce is high on the stress list.
    Could I make clear, it was not meant to sound that simply wishing to end a relationship, was that easy.
    Mediation, could be a useful tool, there are some who change their minds and remain together. Also, accounts of remarriage to the former partner.
    Five years is a long time to wait.
    I have every sympathy for anyone caught in divorce. There is the subject of Parental Alienation, this is receiving much interest. I am part of the grandparent movement to prevent alienation in this area.

  9. JamesB says:

    One point on this. The petition document received is called a ‘prayer’. Personally I think that is blasphemous given that it is usually based on lies and breaking marriage vows by the person ‘praying’ in a rather self-indulgent way, tormenting the respondent, and that needs to change. If morals are irrelevant legally, then calling it a prayer is not right. Especially when it is used to rip the respondent off as it is usually.

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