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Divorce law blog

Can a judge stop me divorcing my ex?

01/03/2017   By: Amardeep Bahia

Can a judge stop me divorcing my ex?

It may seem surprising (and archaic) that you are denied a divorce on the basis that your husband’s constant beratings are "minor altercations of a kind to be expected in a marriage” and that you’re “more sensitive than most wives”, but that’s exactly what happened in the case of Mrs Owens. Her case may be highly unusual but it shines a light on the need for divorce law reform.

Last year, a judge refused to grant a divorce between Mr and Mrs Owens. The judge was persuaded that, despite the allegations of Mr Owens’ unreasonable behaviour towards his wife (including that he constantly berated her for having an affair, made her pick up bits of cardboard in the garden and refused to speak to her during a meal in a pub), the 39-year marriage had not irretrievably broken down. She has now appealed to the Court of Appeal. If she is not successful there, and Mr Owens does not co-operate in getting a divorce sooner, Mrs Owens may have to wait until she and her husband have been separated for five years before she can divorce.

It really is very rare for a judge to dismiss a divorce petition. This is because:

  • issuing divorce proceedings is normally a clear indication that, for one person in the marriage at least, the marriage has irretrievably broken down;
  • it increases the costs and complexity of the proceedings;
  • it increases the tension between the couple which might mean negotiating a financial settlement or arrangements for the children becomes all that much harder; and
  • who divorces who is, in the vast majority of cases, completely irrelevant. 
Courts are reluctant to force couples to remain married where one person is clearly unhappy. They are usually willing to accept fairly trivial behaviour as unreasonable provided the person applying for the divorce can show that the behaviour has had a negative effect on them. Even where a divorce is defended (something that usually only happens when a husband or wife dispute the grounds for divorce or challenge the jurisdiction of the court to deal with the divorce), a divorce is normally in the end granted. This is why what has happened to Mrs Owens is so surprising.

Calls to reform divorce law and, in particular, to introduce “no-fault divorce” are gathering momentum (for some of our previous blogs on no fault divorce see here and here); however, it remains to be seen if the government are prepared to change their minds and change the law.

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