Defended divorces are rare. Successfully defending a divorce petition is rarer still. The proceedings are costly and unfortunately, heard in public.
The Matrimonial Causes Act 1973 allows a divorce to proceed if the marriage has irretrievably broken down. Petitions can be issued for two year separation (with consent) a five year separation, desertion (rarely used) adultery and unreasonable behaviour. Nearly half of all divorces are now based on unreasonable behaviour. The reason for this is that the parties don’t have to wait two years after separation to issue a divorce petition.
Unreasonable behaviour is subjective as to how it affects this particular petitioner. For example, I was involved in a case many years ago where the wife suffered from Obsessive Compulsive Disorder in cleanliness. The husband played on this and would randomly leave a greasy chip in various places around the house. Whereas most of us would simply shrug our shoulders and say “stop being a plonker, leaving chips around the house” the actual effect on this particular petitioner was quite serious. This formed part of unreasonable behaviour in the divorce petition and the divorce was granted. The proceedings were not defended by the husband however. Recent comments made in the press by Tini Owens Solicitors do suggest that when the matter is heard by the Supreme Court they will try to emphasis the subjective effect of Mr Owens behaviour and the affect loveless marriage has had and continues to have upon Mrs Owens.
This case has had a significant impact on family law and practitioners. For many years it has ben good practice to encourage the parties to try to agree what the particulars of the unreasonable behaviour are to be included in the divorce petition. Even if no agreement can be reached, the respondent’s objections can be sometimes accommodated by limiting the details in the divorce petition so as not to cause unnecessary antagonism between the parties.
The case of Owens is a wake up call to practitioners to ensure that sufficient grounds are included in the particulars of unreasonable behaviour to ensure that the divorce petition will succeed. This will inevitably have a negative impact on the relationship between the parties as more serious allegations will be alleged.
Hope is on the horizon however in that there is to be a new proposed legislation for no fault divorce. This is being championed by resolution (an umbrella group for family lawyers).
One wonders whether the judges have taken the opportunity to remind us all and parliament what the Act (MCA’73) actually says and perhaps it is a nudge to parliament to review this law.
I am hopeful that there will be sufficient will for a “no fault divorce” law to be implemented. Social, moral and religious views are generally far more liberal than they were, when the Act came into force well over 40 years.
Hopefully we can move on from fault divorce and whilst getting divorced should not be undertaken lightly, once people have made the decision to divorce the law should encourage people to go their separate ways in the most amicable way possible.