Rachael Shearmur
Posted on 20 Mar 2017

For better: for worse

When can a couple get divorced? That was the issue before a divorce court in a recent case which attracted publicity because the circumstances were so unusual. The couple were also part of the 'silver divorcers', which we have written about in recent months.


Mr and Mrs A had been married for over 40 years. Mrs A had decided that she could cope no more with what she described as the 'bullying and controlling' behaviour of Mr. A. Their children had grown up and left home and Mrs. A felt that she did not want to continue in the marriage.

Mrs. A consulted a solicitor and then issued a petition for divorce. She claimed in that petition that the marriage had broken down because of the behaviour of her husband.

Mr. A did not want a divorce. He lodged a defence to the petition and said that, in his view, the marriage had not broken down and that, perhaps with some counselling, Mrs. A would change her mind and that then they could continue together in the marriage.

The Law

As it stands at the moment, a divorce can only be granted if the judge deciding the case is satisfied that the grounds on which the divorce is claimed have been legally proved AND that the marriage has irretrievably broken down.

Under the Matrimonial Causes Act, which was passed by Parliament as long ago as 1973, the court can grant a divorce only if it is satisfied that 'the marriage has broken down irretrievably'.

The same Act then goes on to say that the only way that it can be proved that the marriage has 'broken down irretrievably' is for one of five specific facts to have been proved:

  1. adultery
  2. unreasonable behaviour
  3. desertion for more than two years
  4. living apart for more than two years and both parties agree to a divorce
  5. living apart for more than five years even if the other party does not agree

There is currently a considerable body of opinion that the law should be changed. Although there has been no formal debate on the issue in Parliament, many Members think that the law should permit a divorce without any proof of 'fault' (i.e. one if the 'facts' mentioned above. Those who oppose a change say that to do away with the need to prove 'facts' would make divorce too 'easy', would be detrimental to the structure of family life and to society as a whole. It remains to be seen how those differing views will be resolved, although there is no indication that a change is likely in the short term.

Unless and until Parliament changes it, the courts have to apply the law as it now is.

The judge’s decision in the case of Mr. and Mrs. A

The divorce petition of Mrs. A claimed Mr. A had behaved 'unreasonably' (and she gave several examples of what she said was such behaviour) and that the marriage had 'irretrievably broken down'. If satisfied with the evidence received in court that Mrs. A had proved both those facts, so that they were more likely than not, then, under the law, the judge would have had to grant Mrs. A the divorce she wanted.

However, Mr. A did not accept that he had behaved unreasonably. He also said that the marriage had not broken down irretrievably. He thought that with help, the marriage could be saved.

Having listened to both parties give their evidence and witnesses who knew them and had seen them together, the judge decided that he was not convinced either that Mrs. A had proved that Mr. A had behaved unreasonably or that the marriage had irretrievably broken down.

In light of those findings, the judge had no alternative but to dismiss the petition of Mrs. A. The net effect, of course, is that, despite her feelings on the state of her marriage, Mr and Mrs. A remain married.


It is extremely rare for divorce cases to be defended. The thinking is that, if one party has decided that the marriage has broken down, there is little that the other can do to save it. A court case where each party is giving evidence to contradict the other does not create an obvious atmosphere for the salvation of a marriage.

It remains to be seen what the future holds for Mr. and Mrs. A. One or other of them will be proved to have been correct but the likelihood is that we shall never know because there will be no further publicity.

One lesson that can be drawn from this sad case is that, where parties are on the brink of divorce, but there is a disagreement as to whether or not the marriage is capable of being saved, it is often very helpful for them to undertake professional counselling. At the end of that process, the future for the marriage will usually be much clearer and a good deal of heartache, distress and uncertainty, not to mention cost, can be avoided.

For more information or some preliminary confidential advice, please contact Rachel Shearmur, Associate in our Family Team, on +44 (0)1392 687634 or email Rachael.shearmur@michelmores.com.