Securing a no fault' divorce may sound like the best option for many couples, but a recent case has flagged up the pitfalls. Ward Hadaway Family Law Associate Sarah Crilly looks at the case.
“Unreasonable behaviour” is one of the grounds on which a court may grant a divorce.
However, a number of recent court judgments have refused petitions on the basis that the behaviour cited in the cases is not unreasonable. This has some important implications for divorcing couples.
In one of these recent cases – Owens v Owens – the Court of Appeal dismissed the Wife’s appeal against the dismissal of her petition.
The Wife petitioned the Court for divorce on the basis of the Husband’s “unreasonable behaviour”. The Husband defended the petition.
The Court at first instance found that the Husband had not behaved in such a way that the Wife could not reasonably be expected to live with him and dismissed the petition.
The Wife appealed but the Court of Appeal upheld the original Court’s finding.
In doing so, the Court of Appeal noted that petitions which aim to be as conciliatory as possible may mean that the criteria to satisfy the test for unreasonable behaviour are not met.
So where does this ruling leave divorcing couples?
Many couples who have found that their marriage has ended may not necessarily be able to point blame at the other party as to why things have broken down.
In those circumstances, the law provides that they will have to wait for at least two years before they may dissolve their marriage.
If behaviour is not unreasonable to the extent that the petitioner could not reasonably be expected to live with the respondent, the Court may refuse the petition.
Understandably, in difficult circumstances, parties don’t want to cause further friction in what may be a civil relationship with their spouse.
However, this Court ruling has made it clear that a divorce will only be granted on the grounds of “unreasonable behavior” if that behaviour is clearly unreasonable and is reflected in the language used in the petition.
The statute that governs this came into force in 1973 and hasn’t been reviewed for over 40 years.
There is lobbying to invite change to legislation to reflect modern society but for now, if a divorcing couple is unwilling to wait for their marriage to be dissolved, the petition presented to the Court must assert blame to the extent of the statute.
This has clear implications for couples looking to dissolve their marriages as soon as possible and needs to be taken into account when deciding on the route to eventual divorce.
