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Can my spouse refuse me a divorce?

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In a landmark court of appeal ruling, judges have refused to let a woman divorce her husband of 40 years.

Family law expert Janine Hutson explores the case and explains what the decision means for those looking to get divorced. 

The case

66-year-old Tini Owens sought a divorce from her husband Hugh Owens on the ground that their marriage had irretrievably broken down, stating her husband’s unreasonable behaviour as the problem.

Mr Owens did not accept that the marriage had come to an end so defended his wife’s petition, stating they could still spend a few years of old age together.

The current rules

Under current English and Welsh law, when petitioning for divorce, you must be able to prove that there are grounds. This can be evidenced through one of five facts:

  • Adultery
  • Unreasonable behaviour
  • Desertion
  • Two years’ separation with consent
  • Five years’ separation without consent

When issuing a petition based on your spouse’s unreasonable behaviour, you need to illustrate that you find it intolerable to reside with them by providing examples of their unreasonable behaviour.

Why the divorce was refused

Behaviour cited within Mrs Owens’ petition included allegations that Mr Owens continually berated her following an affair she had had in 2012, that he would criticise her in front of their housekeeper, that they had an argument in an airport shop and that there was an occasion where he did not speak to her during a meal.

Judge Robin Tolson refused the divorce petition after concluding the behaviour was not unreasonable, the allegations were exaggerated and were minor altercations of a kind to be expected in marriage.

The case was taken to the Court of Appeal where the divorce was refused again. Mrs Owens must now wait five years to be able to issue proceedings without her husband’s consent.

What if my spouse refuses to divorce me?

This case is unusual, as it’s rare for divorces to be declined by the court. Both spouses usually agree the marriage is over, allowing the divorce petition to be processed.

As Mr Owens did not consent to the divorce, it was necessary for the court to give careful consideration to the facts presented.

The case has demonstrated that judges have to carefully consider the facts to ensure the law is being accurately applied. It is not just as simple as a divorce petition being rubber stamped.

The need for no fault divorce

The ruling has resurfaced the need for the law to be changed with the introduction of no fault divorce, which would allow couples to divorce without any evidence of blame.

It has been argued that no fault divorce would allow couples to separate amicably without forcing them to make aggressive allegations to justify marital breakdown, which would be particularly beneficial for couples with children.

While the current law requires the court to consider whether there is evidence of a ground for divorce, it remains to be seen whether no fault divorce will be introduced into UK law in the future.

For more information on divorce, or for advice on any family law matter, contact Janine Hutson on 01772 258321. Harrison Drury has a team of family and divorce solicitors in PrestonKendalLancasterGarstang and Clitheroe.


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