The Court of Appeal has handed down a written judgment in which it has dismissed a wife’s appeal against the High Court’s refusal to grant her a divorce.

Mrs Owens’ petition for divorce was brought on the basis that the marriage had irretrievably broken down because her husband has behaved in such a way that she cannot reasonably be expected to live with him, colloquially known as the unreasonable behaviour ground. She claimed that the marriage had broken down irretrievably because Mr Owens was insensitive, made her feel unloved, prioritised his work over home life and constantly berated her. In all, she claimed that the marriage was “desperately unhappy”. In the High Court, Judge Tolson considered that this behaviour was to be expected in a marriage and that, therefore, the allegations did not satisfy the unreasonable behaviour ground.  The Court of Appeal quite rightly did not seek to interfere with Judge Tolson’s findings in respect of the facts and instead focused on his interpretation of the law which they supported, albeit with “no enthusiasm whatsoever”.   

As a result, Mrs Owens must rely on one of the other four grounds available in order to petition for divorce. Even though they have been separated for two years, Mr Owens does not consent to the divorce therefore they must remain married for a further three years before Mrs Owens can petition for divorce based on the fact that they have been separated for five years. 

There is ongoing controversy surrounding whether the current law is satisfactory in today’s society. It is seen in some circles as inherently unfair that a couple who have fallen out of love and do not wish to live together have to wait for two years before they can petition for divorce. If they do not wish to wait two years, then one party has to allege either adultery or unreasonable behaviour, which can immediately create animosity even in the most amicable of cases. Even worse is the situation that Mrs Owens is now in when the court has ruled that there is insufficient evidence of unreasonable behaviour and the other party does not agree to the divorce proceeding by way of consent.  In his judgment, Sir James Munby stated that being in a “wretchedly unhappy marriage” does not constitute grounds for divorce under the current legislation and whilst this may be true, it cannot be right that two people should be forced to remain married when their relationship is clearly over. Mr and Mrs Owens’ case contributes to the public debate in respect of the lack of a ‘no-fault’ divorce in England and Wales. Reform of divorce law has been widely campaigned for, most notably by Resolution which promotes constructive resolutions in family cases, and ‘no-fault’ divorce is widely supported by practitioners. Mrs Owens has indicated that she intends to seek permission to appeal to the Supreme Court and in any event, it is hoped that this matter will be reviewed by parliament in the near future. It cannot be beneficial for society as a whole if unhappy couples are forced to stay together.