The Supreme Court, the highest appeal court in England and Wales, has recently dismissed an appeal of Mrs Owens, who wants a divorce, on the basis that she has failed to prove that the marriage had broken down irretrievably. The court upheld previous decisions by the original trial judge and the Court of Appeal that Mrs Owens must remain married to her husband until 2020, despite them being in an unhappy marriage which is clearly over.
Mrs Owens originally petitioned for divorce against her husband of 37 years in 2015. In England and Wales, if a couple have not lived apart for at least two years and both consent to a divorce, unless they wait for 5 years from the date of separation they are legally required to assign blame for the relationship breakdown, either by way of adultery or unreasonable behaviour.
As Mrs Owens had not lived apart from her husband for at least two years and she wanted to get divorced, she had no choice but to issue a divorce petition on the basis that, as a result of Mr Owens’ unreasonable behaviour, she could not reasonably be expected to live with him any longer.Mr Owens defended the proceedings.
There have been many Court hearings since Mr Owens set out his intention to defend the proceedings; the Courts have found to date that the examples of unreasonable behaviour Mrs Owens has included in her petition are not enough to satisfy the threshold. The Supreme Court Judges highlighted the troubling nature of the appeal and that it generated ‘uneasy feelings’. However, they reiterated that this judgment was bound by the current legal framework and they have urged Parliament to consider changing the law so that couples who have been separated for less than two years can get divorced without assigning blame.
Many agree that the current system is archaic (it dates back to 1973!) and has not kept up with the times. It can also create needless conflict between separating couples, making it more difficult to reach amicable agreements regarding arrangements for children and/or how finances are to be split. There is a lot of campaigning amongst those who practice family law to have a divorce procedure where one or both parties can give notice that the marriage has broken down irretrievably without assigning blame on either party. Many countries around the world including Australia, the USA and Spain have divorce procedures that do not involve assigning blame.
Despite many calling for a change to the law, the consequence of this judgement is that is that, if proceeding on the grounds of unreasonable behaviour, “a Petitioner’s case must contain sufficient particulars of behaviour by which it can be said that the Petitioner cannot reasonably be expected to live with the Respondent.”
This case also highlights that it is absolutely vital to seek legal advice at the outset of separation to ensure that the divorce petition is drafted in a way which will avoid any unnecessary, costly or stressful litigation.
For more information on this latest ruling by the Supreme Court, or for advice relating to divorce proceedings, please contact our Family Law department on 01708 229444 or email us using the form to the right.This article was written by Yanoulla Kakoulli, Family Associate at Pinney Talfourd LLP Solicitors. The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. Specific legal advice should be taken on each individual matter. This article is based on the law as of July 2018.