Fri | Dec 14, 2018

Unhappily ever after

Published:Monday | July 30, 2018 | 12:00 AM

Many fairy tales end with the words "... and they lived happily ever after". The assumption is that the couple will get married and enjoy a long, happy life together. Then again, the reality is that real life is not a fairy tale.

In the wedding scene in Act 5, Scene 4 of As You Like It, Shakespeare used the following words to describe the different ways in which couples relate - "You and you no cross shall part. You and you are heart in heart. You to his love must accord or have a woman to your lord. You and you are sure together as the winter to foul weather."

The statements were predictions as to the future of the marriages, based on the behaviour that characterised the relationships the couples had during their courtship. In the same way that we will never know whether Shakespeare's couples remained happily in love or always quarrelsome and angry with each other, we know little about the lives most couples lead after we see them on their wedding days. We simply cannot tell how they will relate to each other during marriage.

Although many unhappy couples eventually get divorced, many others remain together, whether by choice or otherwise. Perhaps the worse situation is one in which one of the parties to an unhappy marriage feels that he or she cannot get out of that marriage when they want to. That is the situation in which a wife of almost 40 years found herself recently in England.

Rarely do divorce matters go to trial, and even more rarely do they go on appeal; so the case of Owens v Owens [2018] UKSC 41 is exceptional. Although Mrs Owens, who accused her husband of being "moody, argumentative, and [that he] had disparaged her in front of others", had wanted to get divorced since 2012, it took another three years for her to remove from the matrimonial home and eventually occupy a house they own next door to the matrimonial home. She even had an affair in 2012, but only commenced proceedings to dissolve the marriage in 2015.

The parties have not lived together since February 2015, but defended the divorce claiming that the marriage had been successful. After the judge, at first instance, granted the divorce, Mr Owens appealed against that decision. He succeeded in that appeal and Mrs Owens then filed an appeal to the UK Supreme Court, which she also lost.

 

Different Laws

 

The law in England is different from the law in Jamaica. In Jamaica, divorces are usually granted when there is proof that the parties had been married for two years, separated for one year and the marriage has broken down irretrievably without the possibility of reconciliation. In other words, there is no need to prove that either party was at fault in the breakdown of the marriage. As shown in the Owens case, Section 1(2)(b) of the England and Wales Matrimonial Causes Act 1973, on which Mrs Owens relied, requires one spouse to make allegations about the behaviour of the other to prove that the marriage has broken down irretrievably and "that [she] cannot reasonably be expected to live with [him]".

Based on the Supreme Court's ruling, Mrs Owens has to remain married to Mr Owens. However, if she continues to live apart from Mr Owens for a continuous period of five years, she will be able to file fresh divorce proceedings in 2020 in reliance on 1(2)(e) of the 1973 Matrimonial Causes Act.

Lady Hale said, "I have found this a very troubling case. It is not for us to change the law laid down by Parliament - our role is only to interpret and apply the law that Parliament has given us." There are many persons who have been calling for no fault divorces in England, and this decision is likely to fuel the debate as to whether the law should be amended to reflect the changes in the society.

- Sherry Ann McGregor is a partner, mediator and arbitrator in the firm of Nunes Scholefield DeLeon & Co. Please send questions and comments to lawsofeve@gmail.com or lifestyle@gleanerjm.com.