By way of a brief background, the parties married in 1978 and separated in February 2015. The wife petitioned for divorce in May 2015 on the basis of the husband's behaviour, which the wife argued meant she could no longer reasonably be expected to live with him. As required under the current law, she listed some examples of the husband’s unreasonable behaviour, including occasions when the wife claimed that the husband had made insulting remarks to her in front of third parties. Unusually, the husband decided to defend the case, denying the allegations made, and essentially saying that he wanted to stay married and make things work. Both the Family Court that originally heard the case, and subsequently the Court of Appeal, found that the things the husband had actually done did not truly constitute sufficiently unreasonable behaviour – the wife was therefore denied her divorce. (It should be said that after a sufficient period of time the wife would be permitted to petition for divorce on the basis of two years’ separation.)
It is probably fair to say that the examples of unreasonable behaviour put forward by the wife were somewhat ‘wooly’, but in saying this we do not mean to criticise her. Indeed, over recent decades lawyers have been actively encouraged to advise their clients not to be overly specific and critical when making allegations (where behaviour is the only available ground for divorce) so as to reduce tension and upset, and therefore minimise the chances of a defended divorce.
The real problem here is that there is a tension between our hopelessly outdated divorce law, and people’s understandable desire to get a divorce in as non-confrontational and painless way as possible. Quite simply, the law is crying out for change to allow for simple, no-fault based divorce i.e. somebody being able to divorce simply because they want to (especially, perhaps, where both parties agree).
However, pending a change in the law, lawyers have done their best to try to find sensible compromises – and divorcing on the basis of unreasonable behaviour, whilst being as vague as possible and saying the bare minimum about that behaviour, has represented one of those compromises.
We therefore hope that the Supreme Court will be sensible and find that the test for unreasonable behaviour is a subjective one, so that if, for example, a wife genuinely finds her husband’s taste in music so detestable that she can no longer stay married to him, then she should be allowed a divorce on that basis however objectively silly her complaint might seem. This would, to some extent, allow for something approximating no-fault divorce in the absence of legislation to definitively provide for it.
Finally, we were pleased to note that the Supreme Court allowed ‘Resolution’ to participate in the court hearing on 17th May. Resolution is an organisation comprised of family lawyers and other professionals committed to a constructive, non-confrontational approach to family law disputes.
The head of our experienced family law team, Carline Gayle-Buckle, is a long-term member of Resolution – should you wish to contact her, or another member of the team, then please do not hesitate to call us on 01926 491181.