Teal blue header image

Wife must remain married, rules Supreme Court

A husband's refusal means wife unable to divorce. What are the implications for separating couples?

In arguably one of the highest-profile family law cases for decades, the Supreme Court has today ruled that a wife must remain married after her husband objected to a divorce.

Mr and Mrs Owens' case hit the headlines when Mrs Owens appealed the court's decision not to allow her divorce to proceed, when it was defended by her husband. 

The case has now been heard by the highest court in the country, the Supreme Court. It has dismissed Mrs Owens' appeal and ruled that under current law, she must remain married to her husband, having not satisfied the court that it should order that the divorce proceed against the wishes of her husband.

The decision was made with a heavy heart and the Supreme Court judges emphasised their job was to interpret, not make, the law, stressing the need for Government to consider divorce law reform.

Fault-based divorce

Mrs Owens' divorce petition was based on her husband's unreasonable behaviour. She provided 27 examples of such behaviour, but the court found that these were isolated incidents that did not specifically prove the culminating effect that led to the breakdown of the marriage.

Under the law as it stands in England and Wales (which is almost half a century old), a divorce can proceed on the basis that the marriage has irretrievably broken down, supported by one of five facts (adultery, unreasonable behaviour, two years' separation and consent, desertion and five years' separation). 

Mrs Owens must now wait until 2020 to get divorced, when she can proceed without Mr Owens' consent, on the basis of five years' separation.

The law means that to be able to proceed immediately with a divorce, there must be an element of "fault" on the part of one party to the marriage (adultery in the case of an opposite-sex couple, or unreasonable behaviour).  If parties wish to divorce without a blame element, they must wait for two years after separating.

Comment

At TLT, we are seeing more couples who have just drifted apart and wish to go their separate ways. It is usually a mutual decision and the suggestion of having to attribute an element of blame is met with confusion and dismay.  Having to explain our outdated divorce laws is becoming increasingly embarrassing.

Resolution, the membership organisation for family law professionals, continues to lobby the government for reform of this outdated law and will continue to do so until the government listens, takes note and acts to change the law.

Unfortunately, with Brexit on the horizon, the government's focus seems to be elsewhere and whether they will prioritise this much-needed reform remains to be seen.

In the meantime, we anticipate more couples deciding to wait two years to divorce without blame. However, the risk is that this may leave individuals vulnerable financially, if they do not discuss the split of their finances until two years' down the line. 

With this in mind, we would recommend considering addressing finances at the point of separation (not divorce) and entering into a separation agreement, for peace of mind and security.

To discuss how this may affect your situation, please get in touch. 

This publication is intended for general guidance and represents our understanding of the relevant law and practice as at July 2018. Specific advice should be sought for specific cases. For more information see our terms & conditions.

 

 

Insights & events View all