While a request for a divorce may come as a shock, most people come to the realisation that if their spouse considers that the marriage is over then, perhaps after attending marriage counselling, there is no point fighting the inevitable.
The law in England and Wales requires a marriage to have irretrievably broken down and one of five statutory facts to be proved. The third, fourth and fifth factors require spouses to have been separated for between two and five years, so the majority of divorce petitions are presented on one of the first two grounds: adultery or ‘unreasonable behaviour’. This is not only because people want to move on with their lives, but also because a financial claim cannot be progressed (other than on a voluntary basis) except within divorce proceedings. Unless there is a new relationship, a divorce petition will be presented on the basis of ‘unreasonable behaviour’.
The statutory test is “that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent”. The wording of the statute suggests an objective test, but in considering what is reasonable, the court will have regard to the history of the marriage and to the spouses before it, so the test becomes rather more subjective.
To lessen acrimony, the practice among family lawyers is to submit a divorce petition to the other side for approval before it is issued. Any disputed allegations can then be removed or watered down so long as the grounds that remain are sufficient to satisfy a judge to grant a divorce. As a result many divorces will be granted on what on the face of a divorce petition would seem to be very trivial reasons.
It is extremely rare in England for any divorce to be defended, but in early 2017 the defended divorce of Tini and Hugh Owens reached the Court of Appeal.
Hugh Owens did not want to be divorced from his wife even though she had had an affair in 2012 and had moved out of the family home. He said that he had forgiven her. He defended her divorce petition and the case went to a hearing in which they both gave evidence in the witness box. The judge was unimpressed by the wife’s evidence describing it as “hopeless”, “anodyne”, and “scraping the barrel”. He said it “lacked beef because there was none”.
The judge would not grant Tini Owens her divorce, although if Mr Owens had not defended the divorce a judge would undoubtedly have allowed the petition to go through. Tini Owens was left with two options: either wait another few years until they had been separated for five years or appeal to the Court of Appeal. She chose to appeal.
All three of the appeal judges conceded that on any view the marriage was over, but they had to apply the law. They had to deny Tini Owens her divorce which they did with regret acknowledging that it would leave her in a very unhappy situation. They went so far as to urge Mr Owens to grant his wife the divorce and called for a change in the law which would require a change in legislation to replace the Matrimonial Causes Act 1973.
So where does that leave us today? The likelihood is that the we will continue to issue ‘unreasonable behaviour’ divorce petitions based on compromise statements or ‘fudges’ to reduce conflict, although some family lawyers are worried that judges may now not allow these divorce petitions to go through.
Family lawyers have been calling for many years for no fault divorce legislation which is the law many countries. The Family Law Act 1996 was to introduce no fault divorce in this country, but the relevant part of the Act never received Royal assent, in no small part due to political fears that it would undermine marriage.
Marriage is a matter of choice and there is no test that has to be passed, so why should the ending of a marriage have to pass a judicial test.
For more information, please contact Philip Rutter, Partner in our Family Team.