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Judge rules unhappiness is not a reason to divorce

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A wife has taken her request to divorce her husband on the grounds that she is ‘desperately unhappy’ to the Court of Appeal after her divorce petition was refused in family courts last year.  Sam Miles, Family Partner, here reviews the case and explains what the steps are for a couple where one party refuses to concede to a divorce.

Unreasonable behaviour

The family court heard last year that Mr and Mrs Owens have been married for 39 years, however in 2012 Mrs Owens had an affair which lasted less than 12 months.  As part of her reasons behind her unhappiness in their marriage, Mrs Owens made 27 allegations against Mr Owens about the way he treated her, including that he was ‘insensitive’ in his ‘manner and tone’ and said she was ‘constantly mistrusted’ and felt unloved.  She believed that this all amounted to unreasonable behaviour and went on to say ‘the simple fact is that I have been desperately unhappy in our marriage for many years’ and ‘there is no prospect of reconciliation.’

At the time, Judge Robin Tolson ruled against Mrs Owens based on the fact that Mr Owens disagreed that the marriage had broken down, saying they still have a ‘few years’ to enjoy.  Judge Tolson stated that her allegations were ‘of the kind to be expected in a marriage, saying that her husband was ‘old school’, she had ‘exaggerated the context and seriousness or the allegations to a significant degree” and that Mrs Owens was ‘more sensitive than most wives’.

Family Court Appeal

The case was heard by three appeal judges, led by Sir James Munby, the most senior family court Judge in England and Wales on Tuesday 14th February.  Mrs Owens’ representative argued that the ruling should be overturned as Judge Tolson had failed to make ‘proper findings of fact’ before making his ruling.  However, Mr Owens’ representative stated that the ruling should stand as Mrs Owens had not proven that the marriage was irretrievably broken and stated ‘at the moment, as the law stands, unhappiness, discontent, disillusionment are not facts which a petitioner can rely upon as facts which prove irretrievable breakdown.’ 

In his closing statement, Sir James seemed to agree with this before acknowledging that many people may say these should be grounds for divorce.  The appeal judges are to examine further the legislation surrounding divorce and make a ruling soon.

Separation leading to divorce

“This is a hard situation for both husband and wife when we rely on a fault-based divorce system, and it’s very rare that one party does not agree to a divorce,” explains Sam.  “Mrs Owens has to prove fault on the part of Mr Owens for an immediate divorce to be allowed to proceed, which would include accusations such as abusive behaviour or infidelity.  If Mrs Owens is not successful in her appeal, she will have to separate from her husband.  Depending on whether Mr Owens agrees or not to the divorce in the future will determine how long she will need to be separated for before the divorce can be granted; either two years with consent, or five years without it. 

“There are arguments for and against the introduction of a non-fault based divorce system; while it would mean couples could part easier when they are unhappy in their marriage, it could make it difficult for Judge’s to make a ruling when everyone’s relationship and perception of unhappiness is different.  In this situation however, it is clear to see that Mrs Owens does not wish to be married to her husband, and her refusal to accept the Judge’s initial decision and proceed to appeal, taking both an emotional and financial toll, further supports that.  I am keen to see the ruling from the appeal judges, and what impact that could have on any moves towards a non-fault based divorce process.” 

If you are considering a divorce or separation in your relationship and you need expert, supportive legal advice, you can contact Sam or the Family team on 02380 717431 or email


This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice.  All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.