Unhappily Married? This, sadly, is not grounds for divorce

posted: 29th March 2017

In the unfortunate event your marriage has broken down, you may find yourself feeling lost and wondering what next steps you need to take. Here at PMC Family Law, our expert solicitors are on hand to guide you through this process.

There are a lot reasons why a marriage might come to an end. When this happens many married couples believe they can obtain a divorce based on their irreconcilable differences, mental cruelty, inability to compromise etc. However in England and Wales the only ground for divorce is that your marriage has irretrievably broken down. You must demonstrate this to the court by stating one of the following on your divorce petition:

  1. Adultery
  2. Unreasonable behaviour
  3. Desertion
  4. Two years separation with consent
  5. Five years separation.

Each of these has their own merits and drawbacks, but you must provide sufficient evidence that there is no chance of reconciliation in your marriage and it has unfortunately irretrievably broken down. Upon satisfying the court that one or more of the above facts have been proven they will list a hearing for you to be granted your Decree Nisi, (this is the second stage of the divorce process).

In a recent case before the Court of Appeal, the wife, Mrs. Owens was refused her appeal to divorce her husband based on his unreasonable behaviour. The couple have been married since 1978 and built up a multimillionaire mushroom business. Mrs Owens made 27 allegations of unreasonable behaviour within her divorce petition including criticising her in front of their housekeeper; not speaking to her during a meal at the local pub and rowing with her in an airport shop.  However Mr Owens sought to defend the divorce claiming they “still have a few years of old age together”. HHJ Tolson QC concluded that Mrs Owens allegations against her Husband were “exaggerated” and “are all at most minor altercations of a kind to be expected in a marriage”.

Mrs Owens expressed to the appeal Judges that she was desperately unhappy within her marriage. However Mr Owens argued “as the law stands, unhappiness, discontent, disillusionment are not facts which a petitioner can rely upon as facts which prove irretrievable breakdown”.

Both courts considered the relevant case law which raised the question of whether the Petitioner in all the circumstances would reasonably be expected to live with the Respondent.  Sir James Munby, President of the Family Division, one of the Judges hearing the appeal stated that HHJ Tolson had “directed himself correctly in law… His reasoning, in my judgement, displays no error of law, principle or approach”. Concluding his judgement, Sir James Munby stated “Parliament has decreed that it is not a ground for divorce that you find yourself in a wretchedly unhappy marriage, though some people may say it should be”. Accordingly Mrs Owens appeal was refused.

Mrs Owens, unless her Husband agrees to divorce based on two years separation by consent, will now have to wait until she has been separated from her husband for five years before she can petition for divorce without needing the consent of her husband to do so.

In modern day society, it is unusual for a divorce petition to be defended. Sir James Munby states in the above judgement that in “January 2017, there were 113,996 petitions for divorce. The details are not published, but I understand that, over the same period, notice of intention to defend was given in some 2,600 acknowledgments of service (some 2.28% of all petitions) while actual answers filed were about 760 (some 0.67% of all petitions)”. Defending a divorce petition can often incur unnecessary cost, extend proceedings between the parties and incite acrimony between the parties when it comes to dealing with the finances of the marriage.

There have also been campaigns for the current law to be updated to include ‘no-fault’ divorce to avoid people being trapped within their marriage. Those against no-fault divorce have argued this will undermine the institution of marriage. Despite these campaigns, in February the Government announced they have “no current plans to change the existing law on divorce”.

If you find yourself pondering the difficult question of whether you should end your marriage, please do not hesitate to contact our expert family law team on 0151 375 9968 for your free initial consultation.

By: Lindsey Potter - Paralegal