Woman 'trapped in loveless marriage' after judges refuse divorce

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www.theguardian.com/lifeandstyle/2017/mar/24/tini-owens-trapped-loveless-marriage-judges-refuse-divorce
If she is unhappily married and has had an affair and wants a divorce, FFS why can't she have one?!? AIBU?

"...the effect of Judge Tolson’s judgement is to leave the wife in a wretched predicament, feeling, as she put it in her witness statement, unloved, isolated and alone, and locked into a loveless and desperately unhappy marriage which, as the judge correctly found, has, in fact if not in law, irretrievably broken down.”

Surely this will just frighten even more people off the idea of marriage?

State sanctioned emotional abuse.

My mum made my dad wait- he had had affairs and was being very unreasonable in initial separation discussions over money/house/custody etc.

So her solicitor told her to Say "fine, I won't divorce you then", as a tactic to make him a bit more open to discussion. Didn't make him any more reasonable, but it did give my mum some breathing space.

No doubt he's doing the same thing as my dad did 25 years ago. DM had an affair, left DF and demanded a divorce. DF made her wait 5 years out of spite however DM treated him v badly at the time of the split.

My mum also made my dad wait! I've just remembered this. This was 40 years ago, but their marriage broke down. By the time they did divorce they were both living with others. My mum was not a nice person and the only reason she did it was spite.

Maybe a very wealthy retired mushroom farmer. I'm like Jax and immediately thought it's financial.

The issue here is that the appeal court is bound by the findings of fact of the lower court. So if the lower court says the husband hasn't behaved unreasonably and the marriage has not irretrievably broken down there isn't much the appeal court can do. They can only overturn decisions that are wrong in law on reopen the facts.

Not reopen facts I mean.

"Apparently they dont even live in the same house"

Yes, and it's 2 years separation (with consent) or 5 years without consent.

When she reaches the 5 year point, then he cannot stop her.

It seems to me that the judge is refusing to budge on the 5 year rule. He can't really change the whole law by allowing divorce on the separation 5 years category at under 5 years.

You can disinherit a wife in England but have to share finances on divorce so if he or she dies before they are divorced she may not get a penny thus protecting his money!

A marriage is a legal contract. There are rules. I think making it so that it's easier to divorce does weaken the seriousness and impact of a marriage.
To have and to hold (until I get fed up)
I agree there should be get outs for serious problems like abuse.
My niece just thought it would be simple to divorce, like ditching a boyfriend and is puzzled why that's not so.

So you really believe your niece should be beholden to a foolish decision, then?

Gosh, my post wishing an unpleasant demise on her abusive husband was deleted. Someone reported it? Wow

It's a difficult one. But I do believe that when you make a vow it's pretty important. And I do wonder if it then devalues the marital contract if you can just wake up,one morning and decide you want out for no real reason. It seems a bit throwaway. Waiting for two years seems reasonable. They can live separate of course.

I live in a 'no fault' state. I certainly didn't enter into my marriage thinking I had an 'easy out' or the 'contract' was less binding. Yes, marriage may be a 'legal contract' (many of which have exit clauses built in) but the 'emotional contract' is stronger than any legal one. I entered into it with full faith and knowledge that I was making a solemn vow unto death us do part and that I had a duty to my husband, myself, and to God to uphold that vow. And I have done, as has my DH. BUT, if my husband were to have cheated on me, beat me, abused our children, or otherwise broken faith with me and I (or he) decided to leave the marriage it's good to know that the law wouldn't tie me to him any longer than was necessary to process a divorce.

I suspect it may all go back to the original divorce petition's drafting of the unreasonable behaviour grounds. I think they had a pretty awful marriage. He was critical. he would eat meals in total silence. If it were drafted as once he didn't speak then a judget might well say - hang on that's like many a good marriage after one row. If it were drafted to show the total break down, masses of long silences from him, constant constant criticism of him to her etc etc then I suspect she might have got her divorce.

I think really the whole grounds thing needs overhauling. I was disappointed when they had the opportunity to do this a few years ago (? just in Scotland) but they wimped out/ the lawyers were reluctant to give up the money making machine.
It should be divorce at any time if both partners want out and after 1 years if only 1 wants out. No grounds necessary. If at least 1 partner doesn't want to be married the marriage is over.
The trouble with this case is that the woman was wanting the judge to rewrite English divorce legislation which he can't do.

Isn't it unreasonable behaviour to refuse to allow your wife a divorce

It is. So the judge should just have declared the man had behaved unreasonable by refusing the divorce. (It is a stupid law, anyway, we don't make people get married, so why force people to stay married if they don't want to?
Wasn't there a case much like this some time ago? Where the wife couldn't even leave because she didn't have the money to get her own place?)

It's not. You need under the law sufficient bad behaviour including quite a few listed examples too for a successful unreasonable behaviour petition.

It's a difficult one. But I do believe that when you make a vow it's pretty important.

The vow is made in the church. And the Church will actually not let you divorce so easily (the Catholic Church not at all, but I suppose the Church of England is also not very obliging in this).

The legal part is a contract, and you do not, in fact, get out of it. You have to split finances, etc. in a divorce. That is the fulfillment of the contract, in my opinion.

You see, you can do your honouring vows and being religious and all that shit if you want to.

But I really don't see why you should get to make other people horribly unhappy for as long as 5 years (or for their whole lives if they can't afford to move out because as a housewife, without a divorce, they don't have the money) because of your ideas of morality.

(2)The court hearing a petition for divorce shall not hold the marriage to have broken down irretrievably unless the petitioner satisfies the court of one or more of the following facts, that is to say—

...

(b)that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent;

Did you know you can be a QC just by becoming an MP.

No you can't. The rule that a barrister who is an MO is entitled to be made a QC was abolished in 1964.

And if the genders were reversed the divorce would have been granted.

Any evidence for that? An identical case where the genders were reversed and the decree was granted.

The judge and the Court of Appeal can only act within the law as laid down by Parliament and as they understand it. It's worth remembering that when the five-year rule was introduced in 1969 it was largely regarded as an anti-woman Casanova's Charter. Now more women use it than men.

But divorce should be an administrative affair. You fill in a form saying you want a divorce which you file with the Registrar of Births, Marriages, Deaths and Divorce who sends a copy to your STBX. Six weeks later you fill in another one saying you still want a divorce and it's done. The courts handle disagreements about money and the children.

*MP not MO