It may be of little consolation to the wife but she is not totally without remedy under the present law. If she waits until February 2020, assuming that she and her husband are still alive, she will, seemingly, be able to petition in accordance with section 1(2)(e) of the Act. Of course, the husband may seek to dispute that there has been five years' continuous separation or to defend the petition in accordance with section 5(2) on the footing that the dissolution of the marriage would result in "grave hardship". Both seem unlikely. It is also possible that her husband may eventually consent to a divorce on the grounds of two years' separation in accordance with section 1(2)(d). But, unless she can bring herself within the "no fault" provisions of subsections 1(2)(d) and (e) she must remain trapped in her loveless marriage. As I observed during the course of argument, Parliament has decreed 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.

Some background -

In this extremely unusual case, Mrs Owens has appealed the decision of HHJ Tolson QC who refused to grant her a divorce on the basis that her marriage has broken down due to her husband’s unreasonable behaviour.

Mrs Owens, who has been married to Mr Owens for 39 years, cited 27 allegations of his “unreasonable” behaviour in her divorce petition. In particular, she claimed that the cumulative effect of Mr Owens’ behaviour made it unreasonable for her to live with him. These allegations were denied by Mr Owens who took the very rare (and costly) position of defending the petition. The judge had to examine the details of the allegations and ultimately refused to grant the divorce on the basis that Mrs Owens’ claims were examples of “minor altercations of a kind to be expected in a marriage” and suggested that she had been “more sensitive than most wives”.

The decision was appealed by Mrs Owens and her case was heard by the Court of Appeal, rather ironically, on Valentine’s Day this year.

On appeal, Mrs Owens argued that HHJ Tolson QC had not made proper findings of fact in relation to the 27 allegations of unreasonable behaviour and highlighted that “it is extraordinarily unusual in modern times for a court to dismiss a petition for divorce.” In contrast, Mr Owen argued that HHJ Tolson QC’s decision should not be overruled because “as the law stands, unhappiness, discontent, disillusionment are not facts which a petitioner can rely upon as facts which prove irretrievable breakdown”.

The Court of Appeal is expected to give judgment in the case shortly. If the appeal court finds in favour of Mrs Owens, many will see this as an acceptance by the judiciary that if one party no longer wishes to remain married then this should be sufficient to prove that the marriage has broken down irretrievably. On the other hand, if Mr Owens is successful, Mrs Owens, now aged 66, will have to wait until she is 70 before she can escape her marriage as the only legal route available to her will be to dissolve the marriage on the fact of five years’ separation from Mr Owens.

Also just out of interest
In the year to January 2017, there were 113,996 petitions for divorce. The details are not published, but I understand that, over the same period, notice of intention to defend was given in some 2,600 acknowledgements of service (some 2.28% of all petitions) while actual answers filed were about 760 (some 0.67% of all petitions). There are no available statistics, but one can safely assume that the number of petitions which proceed to a final contested hearing is minute, probably little more than a handful. So, the attritional effect of the process itself reduces from an initial 2.28% of respondents who are minded to oppose the petition to an utterly trivial, let us say something of the order of magnitude of 0.015%, of respondents who actually carry their opposition through to a contested hearing.