25th July 2018

Can you be forced to remain married when you want to be divorced?

By Tim Melville-Walker  – Head of Family Department

The Supreme Court has just decided the case of Mr and Mrs Owens – https://www.bbc.co.uk/news/uk-england-hereford-worcester-44949856 and press reports are suggesting that means you can be forced to remain married. However that is not actually what the court said and the official press summary is http://www.familylawweek.co.uk/site.aspx?i=ed191133 and reads rather differently.

The short answer really is “no”: nobody can force you to remain married or in a civil partnership if you do not wish to be.

The issue is our outdated divorce law in England and Wales (upon which civil partnership law is based). Sadly there is no way to simply agree that there should be a divorce (not that that would have helped Mrs Owens anyway as the husband was opposing the divorce): Family lawyers continue to call for this, and the Judges in this case have done the same, but there is no prospect of a change in the law anytime soon. What happened in the case is that Mrs Owens started her divorce on the basis of “unreasonable behaviour”  –  the only ground available for immediate divorce where there is no affair etc.: see  http://www.macdonaldoates.co.uk/wp-content/uploads/2012/01/Divorce_Process_2016.pdf.

The outdated law then forced Mrs Owens to list examples of her husband’s behaviour to prove it was unreasonable to expect her to live with him. These were not agreed and Mr Owens– very unusually, and almost certainly for other reasons –  defended the divorce. Thus there had to be a court hearing and the Judge found that the examples were largely trivial and exaggerated. He therefore could not grant a divorce on that basis.

Mrs Owens appealed the decision to the Court of Appeal and eventually to the Supreme Court. All the judges were sympathetic but frustrated as the law required them to refuse Mrs Owens. However, that was primarily because only the first judge heard the evidence first hand. That does NOT mean any of these courts want Mrs Owens to have to remain married, or that she must now remain married to him. She may well have to start from the beginning again however.

This should never have happened, and there is more involved in the case than meets the eye. It is HIGHLY unusual but it does not mean you can be forced to stay in a marriage or civil partnership.

In a situation where it looks like a divorce or civil partnership dissolution is going to be defended, it is very important to have the papers right from the start, and make sure that you can prove any allegations if necessary. Better yet, in most cases we agree the contents of the papers before they are ever sent to the court, so the situation never arises.

If you are considering a divorce, civil partnership dissolution or any significant relationship split,  it is vital to take some proper legal advice at the very start, before any papers are submitted. Early advice can make the difference between a divorce being defended at huge costs – the costs of Mr and Mrs Owen must be well over £100,000 – to say nothing of upset that can be caused, or just going through by agreement without ever having to walk into a courtroom. It really does not have to be this way.