This week has seen the Court of Appeal hear evidence as to whether to uphold a previous decision that a couple must remain married, despite a Wife issuing a petition for divorce.
The case was defended by the Husband who insisted that he wished to remain married to the Wife. The clear question before the Court is whether the marriage has “irretrievably broken down” and has the Wife shown that she fulfils one of the set categories to show the marriage has irretrievably broken down and so be granted a decree of divorce.
In this case the Wife claimed that the Husband had behaved unreasonably. The Court initially refused a divorce on the basis that the Wife had not shown this, as it felt she had only referred to behaviour that was “at best flimsy” and saying they were “minor altercations of a kind to be expected in a marriage”. The end result has been that the Wife has been stuck within a marriage she does not want due to what many people are calling a technicality.
The means of seeking a divorce based upon the other person’s “unreasonable behaviour” is often used to obtain a divorce without waiting for two years of separation, where they both consent, or longer separation of 5 years if the other party does not consent. Here the husband does not consent to the divorce and so the Wife would have to wait 5 years from the date of separation to apply for a divorce. In this case the Wife is lucky enough that there are several properties owned by them and so they are at least living in separate properties, but in many cases parties are stuck in the same property until the divorce can be finalised.
In November 2016, I supported Resolution, an organisation representing specialist family lawyers, at their Parliamentary lobbying day. Resolution was representing what many family lawyers consider is a necessary step, which is to move towards a “no fault” divorce process. Critics have argued that this will make divorce much easier and therefore should not be encouraged. Surely, however, it would make circumstances like this much less stressful. Surely, if one party has decided that they no longer wish to remain married to the other party, the anguish should not be prolonged as in this case. The decision of the Court so far has not resolved marital tension and left the couple happily together, it has simply prolonged a difficult and stressful situation where the parties have remained in Court proceedings, creating the need for the Wife to continue to repeat and reinforce the reasons she no longer wishes to remain married to the Husband.