Can a Judge Deny a Divorce?

12 March 2019

By Family Law Paralegal, Lauren Jones

It is relatively unusual for a judge to deny a divorce in the UK Courts but it is possible in some circumstances for a divorce to be denied by a judge. This may happen if the divorce is contested or if the judge thinks the respondent hasn't received their divorce papers. If both people consent to the divorce it is especially rare for a judge to heavily scrutinize the reasons the petitioner has cited for the divorce.

What are the Grounds for Divorce?

For a divorce to be granted by a judge in the UK Courts, the petitioner must demonstrate that the marriage has "irretrievably broken down." This can be demonstrated by using one of the following recognised reasons for marital breakdown:

  1. Unreasonable behaviour
  2. Adultery
  3. Desertion
  4. 2 years separation with consent
  5. 5 years separation without consent

Under What Circumstances May a Judge Deny a Divorce?

The petition made by the applicant must clearly set out one of the above reasons to demonstrate that the marriage has irretrievably broken down.

With unreasonable behaviour, the judge has to be satisfied that the petitioner cannot reasonably be expected to live with the respondent as a result of their unreasonable behaviour. It is therefore important that several examples are given which clearly demonstrate such behaviour, otherwise a judge may deny to grant the divorce.

This is what has happened in the high profile divorce case of Tini and Hugh Owens. Mrs Owens is seeking a divorce from her husband of 39 years on the basis of his unreasonable behaviour. Her husband is defending the divorce and disputing the allegations of unreasonable behaviour. The Court ruled that the evidence of Mr Owens' unreasonable behaviour wasn't enough to have caused an irretrievable breakdown of the relationship and have denied the divorce. As a result Mrs Owens will now have to wait until she can divorce her husband on the basis of 5 years' separation. She describes herself as a "locked in" wife in a "loveless and unhappy marriage."

This case, along with others, has caused the fault-based method to granting a divorce in the UK to be criticised, as many people suggest that it is not fair that couples cannot be granted a divorce based solely on the fact that the marriage is unhappy. For this reason, there have been calls for 'no fault' divorce to be introduced in the UK, and it has now been confirmed that the Government is planning to overhaul UK divorce law in response to this. However, as it currently stands divorce in the UK remains fault-based and the judge does have the power to deny the divorce if the reasons given are not satisfactory.

A judge may also deny the divorce if the applicant has relied on the reason of two years' separation with consent if the respondent has failed to provide their consent for the divorce. Similarly, if you wish to rely on the ground of adultery the respondent must sign to state that they committed adultery, and without this the judge will not grant the divorce. However, in the case where the respondent refuses to cooperate with the divorce, your Divorce Solicitor may advise that you opt for the ground of unreasonable behaviour, as this avoids the consent element and allows you to proceed with the divorce without the consent of the respondent.

A judge will not grant the divorce unless they are satisfied the respondent has received the divorce papers. This is usually satisfied by the respondent returning an acknowledgement of service. If they do not return this however, you may need to get a process server to serve the papers on the respondent. Once this action is taken, you can proceed with your divorce as normal and it won't get denied by the judge as long as they are satisfied the papers have been served.

Contested Divorce

In the event that the divorce is contested, the judge may deny a divorce if they do not deem there to be sufficient grounds for the divorce. This however is very rare, and it is generally quite unlikely that a judge will refuse to grant the divorce. It will simply mean that the judge will schedule a hearing to review whether or not to grant a divorce, and more often than not the judge does then grant the divorce at this stage.

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