A husband has been allowed to dispute the granting of a decree nisi in his divorce by the Court of Appeal.
In Price v Price, the husband claimed that when originally served with a divorce petition, he posted an answer to the courts, setting out his defence to the claims made in the petition, but this never arrived.
With no official response from Mr Price in the court system, the original judge simply went ahead and pronounced the divorce decree nisi ordering the man to pay his wife’s fees of £2,500.
Mr Price appealed against that decision, not only because he disputed much of what was said in the original petition, but also because he wanted to defend the divorce, believing his marriage could still be salvaged.
Mr Price’s lawyer argued that the original judge and the appeal judge had “too readily concluded” that Mr Price had not filed an answer.
The argument was that by finding he had not submitted an answer, it was “tantamount to a finding of dishonesty” without the man being able to defend himself as there was no oral evidence given to test the veracity of his account.
Rule 7.20 of the Family Procedure Rules 2010 states that no notice should be given to a spouse that a divorce is going ahead as uncontested. Mr Price’s lawyer argued that because of this rule, there was no way for him to know the court had not received his answer.
At the Court of Appeal in London, Lady Justice Black said she had no doubt that Mr Price did not have a proper opportunity to make his case. The first judge had been “too robust”
She went on to say that the fact that his response to the divorce did not arrive at the court was not in itself evidence of his failure to send it.
Despite the fact she was “extremely reluctant to see these parties continue to litigate in what will be emotionally and financially draining proceedings”, she allowed the appeal “with considerable regret”.
Lord Justice Underhill agreed, noting the importance of oral evidence in cases like this.
“Putting the party in the witness box and allowing any relevant questioning will not normally take very long; and, quite apart from being the right course in principle, it ensures that the Court appreciates that, narrow though the issue may be, it is one of fact on which a reasoned … decision is necessary.”
Lady Justice Black went on to make some constructive suggestions to resolve the case – suggesting a petition based on two years separation to avoid the necessity of arguing over conduct. She also suggested that if the divorce remained defended, it could be heard at the same time as the financial proceedings.
What interests me about this case is that comes during interesting times in family law.
The arguments for and against reducing a divorce to a mere administrative process are currently in vogue given the recent call by the President of the Family Division to reduce uncontested divorces to an administrative procedure.
I (respectfully) don’t share his view and perhaps this case demonstrates why not. All sorts of arguments are being made for administrative divorce, the main reason being that an uncontested divorce process in reality is nothing more than an administrative process.
Defended divorce would presumably still remain in court, but as we see from this case, even where one party does wish to contest the divorce (as is their right) life is made very difficult, as Mr Price discovered.
Two judges in the lower courts did their level best to prevent him from holding up the divorce. Few of us would have the stomach to contest the matter to the Court of Appeal. But on the other hand, divorce is life affecting and we who work in this field must not ever forget this.
By allowing the appeal to proceed and handing down this judgement the Court of Appeal has signalled loud and clear that they disagree, and that Mr Price is entitled to a hearing.
There are undoubtedly those who may still feel this process is a complete waste of time and money and at some point Mrs Price will triumph, as I am pretty sure she will. However the point of having a court is to give both parties a say, particularly in something as fundamental and life affecting as a divorce.
If Mr Price loses, he will be ordered to pay the not insignificant costs of having his day in court. But, he will have had his say. And we should be proud that our democratic society affords us all that right.
And a post script: I suppose it’s not inconceivable that at some point someone will come up with the great idea that, to save even more time and money, why not abolish marriage altogether? There won’t be a need for divorce at all.