March 2, 2017

When The Court Says You Cannot Get Divorced

Written by Sara Plant

You may recently have seen in the news a case involving a woman who had been married to her husband for thirty-nine years. Mrs Owens had decided to divorce Mr Owens on grounds of his unreasonable behaviour and made twenty-seven allegations of his treatment of her including how she felt he “constantly mistrusted her” and was “insensitive” to her. Her husband decided to defend the divorce saying that he did not believe that the marriage had irretrievably broken down.
It is important to remember that there is only one ground to end a marriage or civil partnership in other words that it has broken down irretrievably. This has to be proved using one of five facts including:

  • The other person’s adultery
  • The other person’s unreasonable behaviour
  • Two years’ separation with the consent of the other person
  • Desertion for two years or more by the other person
  • Five years’ separation

This matter in fact went to the Court of Appeal and the wife was refused permission to divorce her husband on the grounds of his unreasonable behaviour.
Therefore, what do you need to establish within your Divorce Petition if you want to rely on unreasonable behaviour? Usually four or five incidences of unreasonable behaviour including dates are sufficient. The test would then be would a right-thinking person or the man/woman in the street conclude that the Petitioner could not be reasonably expected to live with the Respondent, as a result of their behaviour.
The Court will generally only look at this if the Petition is defended. However I have come across cases which have failed to satisfy a judge as to the severity of the behaviour. Therefore, when preparing a Divorce Petition, it is important to include incidences of the other person’s unreasonable behaviour which are current and to cite the effect that it is has had on you personally.
I recall a case learnt during my student days when a woman was granted a divorce on the grounds that her marriage had irretrievably broken down due to her husband’s unreasonable behaviour which included eating peanuts in bed.
This case where the divorce has been refused is extremely rare. Defended divorces do not happen frequently because it is expensive to defend a Divorce Petition and by the time it gets to separation and divorce, the feeling between husband and wife is often mutual. However defending a divorce petition can be used as a strategy to stop a divorce in its tracks when for example the other person does not want the Court to go on and look at financial matters.
It is extremely important to get the Divorce Petition drafted correctly and there is a Family Law Protocol that states that all unreasonable behaviour petitions should be passed to the other person first to get their approval before issuing at court to avoid unhelpful scenarios such as the one in Owens case. There is a skill in getting the particulars of the divorce petition pitched correctly – that is with enough information to “show cause” but without making the details of the behaviour so offensive as to create much bad feeling between the parties.
Although there is obviously a greater principle involved in the Owens case, it would have helped Mrs Owens to know in the first place whether Mr Owens would have accepted her divorce petition before proceeding.
At Peter Lynn and Partners, we have one of the largest Divorce and Family Law teams in the region. With 14 lawyers and 8 support staff we offer a successful combination of experience and resources when dealing with clients.
To arrange a confidential meeting, please email [email protected] or telephone 01792 450010.