Wretched and unhappy marriage: not a ground for divorce

In 1973 we entered the European Economic Community, women worked the London Stock Exchange for the first time, there was a spate of IRA bombings and Last of the Summer Wine had its first showing on TV. We wrote letters, smoked heavily everywhere, thought brown polyester clothing and kipper ties were fab and popped out to the shops in our Austin Allegro to buy a loaf of white sliced bread for 9p. In this social, economic and financial climate the principal divorce legislation was born; the Matrimonial Causes Act 1973.

Life has moved on as we enter Brexit negotiations with a female prime minister, believe we cannot work or socialise without the internet and mobile phones, and Last of the Summer Wine after 31 series is now seen only on Gold if we can find it amidst Sky, Amazon Prime and Netflix. The Matrimonial Causes Act 1973 has not kept pace with change.

It’s a tricky problem, though, changing divorce law, which is no doubt why there is a reluctance to tackle the much needed change. The fear is that if we make divorce too easy, we have more families supporting children on a single income who are therefore more likely to have an increased reliance on State help in some way. This costs the State money as we have an expensive and complex State funded system of healthcare, education and benefits, which many identify as underfunded and at breaking point as it is.

Mrs Owens’ case highlights the absurdity of attempting to fit modern day society into 1973 legislation and the need for some change; difficult as it may be. The 1973 Act says you can only divorce if your marriage has broken down irretrievably and if you can satisfy the Court on the balance of probabilities that your marriage is at an end because you have a set of circumstances which falls into one of five categories:

• Your husband or wife has committed adultery and you find it intolerable to live with him/her. Adultery is often difficult to prove (i.e. sexual intercourse) without a signed admission.
• Your husband or wife has behaved in a way that you find unreasonable.
• Your husband or wife has deserted you for two years or more.
• You have separated from your husband or wife for two years, and your husband or wife consents to being divorced.
• You have been separated from your husband or wife for five years or more. 

Mrs Owens was and is unhappy in her marriage to her 78 year old multi-millionaire retired mushroom farmer husband. Mrs Owens, now aged 66, had a bit of a fling with a man called Ted in 2012, no doubt driven by the 12 year age gap with her husband and what the Judge described as Mr Owens’ “old school” attitude. She’d been married to Mr Owens for some 35 years at the time of her affair with Ted. Her affair fizzled out but Mrs Owens moved out of the family home anyway in 2013 and did what many do in her position; she took legal advice and started divorce proceedings on the only basis she could – namely that Mr Owens had behaved in a way that she found unreasonable.

Mr Owens defended the divorce. As a multi-millionaire he had money to burn on legal fees. He claimed that he had forgiven his wife for her “misguided” fling and that they “still have a few years of old age together”. The Judge agreed with Mr Owens taking the view that Mrs Owens’ unhappiness was only to be expected in marriage.

Mrs Owens appealed. The Court of Appeal refused her appeal. Mrs Owens complained that she suffered Mr Owens continued “beratement” which included criticising her in front of their housekeeper, rowing with her in an airport shop and not speaking to her during a restaurant meal. She felt “unloved, isolated and alone”. The Court of Appeal remained dissatisfied that Mrs Owens had passed the 1973 divorce test, stating her allegations to be flimsy and over exaggerated and 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.”

Mrs Owens will now have to wait another year for her divorce, by which time she will have been separated from Mr Owens for 5 years. This has no doubt been a hugely expensive exercise for both Mr and Mrs Owens in terms of legal fees and whilst few have the funding or inclination to defend a divorce, nevertheless the predicament Mrs Owens now faces highlights the importance of continuing to fall in line with the 1973 divorce legislation. 

Members of Emsleys’ family team are Resolution solicitors: Gabbie Clasper is accredited by Resolution nationally as an expert in financial cases. Additionally, members of the family team are accredited by the Law Society as experts in Family Law. We offer an initial appointment free of charge at any of our offices and can give you an estimate of our fees and information about payment plans and funding during your appointment. If you then decide you want to instruct us, we confirm the work we have agreed with you that we are to carry out on your behalf and estimate our fees in writing. We ask you to sign documentation before incurring any charges.

For a free, initial consultation with one of our experts in Family Law, please call 0113 201 4902 or email family.law@emsleys.co.uk.