Divorce – If one party feels the marriage has broken down, has it really in the eyes of the law?

Unlike the USA we do not have a no fault divorce. The most common ground for a party to rely on if they wish to divorce without delay is the other party’s unreasonable behaviour. But what is ‘unreasonable’? 

As family lawyers we usually advise that if one party feels that the marriage has broken down then it usually has! It is surprising therefore that the Court of Appeal have upheld the decision that being ‘in a wretchedly unhappy marriage’ does not constitute the marriage having ‘irretrievably broken down’. 

The reason the Court of appeal has not overturned the ruling of Judge Tolson is that Mrs Owen’s allegations were deemed to be “of the kind to be expected in marriage”. As is the case in much of the law, the question of what is reasonable can be subjective, however it is the law’s role to put this within a legal framework. What one person may feel is unreasonable may not be unreasonable to another. Clearly in this unusual case feeling unloved, feeling that she was constantly mistrusted and that Mr. Owen’s was insensitive were ruled not sufficiently unreasonable grounds for the Court to allow Mrs. Owen’s the divorce she sought. 

As a family lawyer preparing a divorce petition we will always try and make sure the the particulars cited are clear, concise and sufficient for a Judge to agree that the marriage has irretrievably broken down. We appreciate that it can be a difficult step to take and often, having to cite details of why you feel your husband or wife’s behaviour has led to the breakdown of your marriage, can be incredibly hard. Because of this, we work closely with you to ensure that the particulars contained in the Divorce Petition are sufficient enough to ensure that a judge will approve the divorce, but accurately reflect the reasons you feel you want to proceed with divorce. 

In Mrs. Owen’s case it now seems that the only remedy available to her is to wait for 5 years from the date of separation; as Mr. Owen’s consent is then no longer required by law.  Mrs. Owen’s will eventually get the divorce she seeks; it is just a question of how long she has to wait for it. 

Sir James added: '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.'