Unhappy wife must stay married

We reported in previous news about the sad case of the wife who wants to get divorced as she is in an unhappy marriage, but her husband does not want the divorce.

Contrary to popular belief, there is only one ground for divorce and that is that the marriage has ‘irretrievably broken down’. There are five ways to prove irretrievable breakdown:

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

A person cannot put forward their own adultery as a way of proving irretrievable breakdown.

In the recent case, the wife had an affair and wanted to divorce her husband to whom she had been married for 40 years. She felt that she was in an unhappy marriage and that her husband had belittled her. However, her husband felt that the marriage could be saved and was not agreeable to a divorce. The wife brought a case to try to establish that his actions towards her amounted to ‘unreasonable behaviour’. The case has now been considered by the Supreme Court which is the highest appeal court in England and Wales and she was not successful in her claim.

The wife left the matrimonial home in 2015 so she will have to wait until 2020 to get a divorce. She will then be able to rely on five years’ separation without consent to establish irretrievable breakdown on the marriage.

The interesting feature of the case is that the Judges involved clearly had misgivings about the case. One described it as ‘a very troubling case’ and another had ‘uneasy feelings’ about it. However, the Supreme Court also firmly held the view that it is not up to Judges to change the law in this area and that any such change is up to Parliament.

There are calls for ‘no fault’ divorce following the case meaning that parties do not have to prove any fault to obtain a divorce.

Getting a divorce can often be the easy part of a marriage breakdown. Dealing with the split of the finances between the parties can be very difficult. It is reported that many divorcing spouses fail to take account of their spouse’s pension provision which can often be a valuable asset.

If you want to discuss this or any other matrimonial related matter, contact us.

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