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Til death do us part?

June 12th, 2017

The divorce case of Mr and Mrs Owens in the news ( was about a wife who has been married for 39 years and was refused a divorce on the grounds of unreasonable behaviour.

The judge who originally heard the case formed the view that the examples of the husband’s unreasonable behaviour put forward by the wife were not sufficient and such behaviour was “of the kind to be expected in a marriage”.  Therefore the Court concluded that the marriage had not ‘irretrievably broken down’.

Under current English law, in order to obtain a divorce, you must show that the marriage has irretrievably broken down by satisfying the Court on one of the following five grounds: –

  • Adultery
  • Unreasonable Behaviour
  • 2 years separation by consent
  • 2 years desertion
  • 5 years separation

With the four other grounds, the criteria for satisfying these is evident from their description but with the ground of Unreasonable Behaviour, this is not the case.  In respect of Unreasonable Behaviour, section 1(2)(b) of the Matrimonial Causes Act 1973 states that the Court will find the marriage has irretrievably broken down if it is shown that: –

“…the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent.”

Therefore, under the strict interpretation of this definition, in order to satisfy the Court that the other party has been unreasonable, you would effectively have to have a Judge that agreed that the behaviour you have stated was unreasonable.

Clearly, there will be certain types of behaviour, such as physical violence, that will immediately be seen as unreasonable but, as shown in the above case, it is not so clear cut when it comes to other types of behaviour.  In the case in question, the examples of unreasonable behaviour put forward, although significant to Mrs Owen, were not seen as such by the Judge.

Although the Courts generally adopt a sensible approach to this issue, this has unfortunately not been the case for Mrs Owens.  Having now unsuccessfully referred the matter to the Court of Appeal, Mrs Owens is faced with the prospect of having to wait until 2020 until she can issue another petition on the basis of 5 years separation which will not require Mr Owens’ consent.

Given that the vast majority of divorces are not defended and, even when defended, are rarely refused by the Court; this decision again casts a light on the divorce procedure in England and asks whether this remains fit for purpose or if material changes are required to bring this up to date with modern society.

For more assistance and advice on family law matters, please contact our Head of Family, Gavin Henshaw, on 01494 773377 or by email at

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