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Legal battle against a court's refusal for divorce

View profile for Melanie Loxley
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Last week we heard that the Court of Appeal had reserved its decision on whether HHJ Tolson QC was right to refuse to grant Mrs Owens divorce petition based on her husband’s unreasonable behaviour. This case, which has attracted lots of recent media attention, highlights some of the problems with our existing divorce laws.  

Presently, in order to divorce, a person must prove to the court that the marriage has broken down irretrievably and must rely on one of five facts to prove this:- Adultery, Unreasonable Behaviour, 2 years’ Separation and Consent, Desertion and 5 years’ Separation.  

Unfortunately, this means that where a couple has been separated for less than two years, they have to rely on their spouse’s adultery or unreasonable behaviour if they wish to divorce them.

This case is unusual in that firstly, Mr Owens is defending the divorce. This is a costly exercise and as defended divorces are generally heard in open court, most people shy away from defending a divorce. Further, it involves one party challenging that the marriage has broken down irretrievably in circumstances where the other party clearly feels that it has. One has to ask what has to be gained by forcing a person to remain married who clearly does not wish to be?

Secondly, the case is unusual as the trial judge refused to grant Mrs Owens divorce and decided that she had not been able to prove that Mr Owens had behaved unreasonably.  By so doing, HHJ Tolson QC is effectively compelling Mrs Owens to remain married to Mr Owens, at least until the divorce can proceed based on 5 years’ separation. (One surmises Mr Owens won’t readily consent to a divorce after 2 years’ separation!)

Whilst there are many acrimonious divorces, many couples who divorce one another remain on good terms and one or both of them have simply decided they are no longer happy sharing their life with that person. Why should these couples, who want to preserve a good relationship with one another and also their dignity throughout the divorce process, be forced to postpone their divorce for a number of years, rely on an affair or list examples of their spouse’s shortcomings to secure the divorce they seek?  

There are no plans to revisit the divorce laws in the UK at present, although there has been much lobbying in this regard. We now eagerly await the Court of Appeal’s decision on Mrs Owens appeal. Read the full story here.

If you find yourself in an unhappy marriage, Birkett Long has specialist divorce and separation lawyers who can talk you through the various options that are open to you and if you do wish to divorce straight away, we can ensure that the divorce papers are drafted in such a way that the court is satisfied you are entitled to a divorce whilst at the same time enabling you to preserve a positive relationship with your spouse for the future.

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