Update: some of our readers may have seen the original version of this post. That was partly based on information we received late on Wednesday from an apparently reputable source which nevertheless turned out to be incorrect. Our apologies for any confusion caused.
After a relatively quiet start to 2017, some interesting family law cases have begun to generate headlines. Amongst the most unusual was one we reported only yesterday – a wife’s appeal against an “extraordinary” refusal of her divorce petition.
The facts are fairly straightforward. The wife is in her 60s and her husband in his late 70s. They had lived a prosperous life together for nearly 40 years but it seems the relationship had begun to fray in recent years and the wife left the matrimonial home in 2013. Eventually she filed for divorce, insisting that her marriage was “isolated” and “loveless”. Her husband had become critical and argumentative she complained, citing rows and outbursts that she felt constituted what is often (but wrongly in law) referred to as ‘unreasonable behaviour‘ – but the basis of which is one of the five facts which can be used to prove the ‘irretrievable breakdown’ of a marriage.
So far, so ordinary. The breakdown of a long marriage is sad but nothing else especially unusual. All those years can be a burden and not a blessing and sometimes people long for some freedom in the twilight of their lives.
But in this particular case things took a turn for the unexpected when a Judge refused the wife’s petition. Her husband had taken the unusual step of defending the divorce and succeeded in convincing the presiding family court judge, who declared her claims “flimsy” and “exaggerated”.
That is uncommon these days and it was no surprise that the wife subsequently appealed. In court her barrister did not mince his words, insisting that:
“It is extraordinarily unusual in modern times for a court to dismiss a petition for divorce.”
‘In modern times’ is the key here. As we have discussed here before, English law insists on a fault-based approach where an immediate divorce is sought. There must a form of misconduct, whether it is adultery which is intolerable or behaviour which no ordinary person can be expected to endure. By far the most commonly cited reason for the breakdown of a marriage is a person’s behaviour – as it is phrased in the Matrimonial Causes Act 1973:
“…that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent.”
As you can imagine, these are malleable words and can be stretched to cover anything from genuinely outrageous behaviour right through to humdrum human failings.
As I write, we are still awaiting a verdict from the Court of Appeal in this case. I shall be very intrigued to see what they make of it. My suspicion is that a significant part of the problem may have lain in the original petition itself. How was it phrased and what did it say? What instructions did the wife give to her legal team? If her instructions were bland, then the petition might have been just as lacklustre. Sometimes petitions stand or fall on the instructions given by a client and the translation of these onto paper. There is an art in trying to coax the best from tongue-tied clients who struggle to open up. Marriage is a very personal experience and not everyone finds it easy to discuss the deterioration of the central relationship in their lives. On the other hand perhaps the petition was kept deliberately low key so as not to inflame the situation any further. However, given a determined respondent all guns should really be out blazing.
The Matrimonial Causes Act lays a clear duty on the Judge to consider the facts when a divorce petition is presented. Yes, organisations such as Resolution have been banging the drum for no fault divorce for years now, but the reality is that ending a marriage has not yet become the bureaucratic, rubber-stamping exercise they seem to want. Let’s take a look at section one of the Act – note in particular those sections which I have underlined:
“(1)Subject to section 3 below, a petition for divorce may be presented to the court by either party to a marriage on the ground that the marriage has broken down irretrievably.
(2)The court hearing a petition for divorce shall not hold the marriage to have broken down irretrievably unless the petitioner satisfies the court of one or more of the following facts, that is to say—
(a)that the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent;
(b)that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent;
(c)that the respondent has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petition;
(d)that the parties to the marriage have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition (hereafter in this Act referred to as “two years’ separation”) and the respondent consents to a decree being granted;
(e)that the parties to the marriage have lived apart for a continuous period of at least five years immediately preceding the presentation of the petition (hereafter in this Act referred to as “five years’ separation”).
(3)On a petition for divorce it shall be the duty of the court to inquire, so far as it reasonably can, into the facts alleged by the petitioner and into any facts alleged by the respondent.
(4)If the court is satisfied on the evidence of any such fact as is mentioned in subsection (2) above, then, unless it is satisfied on all the evidence that the marriage has not broken down irretrievably, it shall, subject to [F2section 5] below, grant a decree of divorce.
(5)Every decree of divorce shall in the first instance be a decree nisi and shall not be made absolute before the expiration of six months from its grant unless the High Court by general order from time to time fixes a shorter period, or unless in any particular case the court in which the proceedings are for the time being pending from time to time by special order fixes a shorter period than the period otherwise applicable for the time being by virtue of this subsection.
[F3(6)Only conduct between the respondent and a person of the opposite sex may constitute adultery for the purposes of this section.]
Note in particular paragraph 3:
“On a petition for divorce it shall be the duty of the court to inquire, so far as it reasonably can, into the facts alleged by the petitioner and into any facts alleged by the respondent.”
That is the key to this whole story I believe. The Judge considered the facts presented by the wife and found them unconvincing.
Back when I was a trainee, divorce petitioners had to go into open court and present their cases under oath, even if the divorce was undefended. And it has to be said, some judges appeared to me, an inexperienced novice at the time, to be pretty vile as they sat there pondering the claims and counterclaims made.
Sometimes petitions were thrown out. That happened to me once, although in my defence I can say that a partner in my firm at the time had actually drafted the petition (I was still a trainee). It involved a woman whose husband had been pretty awful to her. It stands out in my mind because she was in tears as she gave her evidence and for some time afterwards. She found it difficult to give evidence in public. I still remember how unfair the Judge’s attitude to our client seemed. I tried my best to cheer her up over a cup of tea and we did eventually get her the divorce she wanted – but on a different fact: her husband agreed to two years’ separation by consent (see paragraph d) above).
Things have changed since those days. Divorce is now largely a paper exercise and very rarely goes to court, unless the couple in question are at each other’s throats and wealthy enough to be able to afford the unnecessary fight. Divorce lawyers try to keep allegations and claims as mild as possible to try and avoid inflaming a difficult and emotive situation. Every opportunity is also taken by the Judges before whom these cases appear for preliminary hearings to steer divorce cases out of the courtroom and into settlement as soon as possible. For one thing, this helps to keep costs down. And of course, legal aid is no longer available for common-or-garden family disputes and that has a lot to do with the rarity of defended divorces in 2017.
Many Judges now have an active dislike of defended divorce, seeing them as a waste of court time. Most of us recognise that if one partner says a marriage is over, then it is doomed from that day on, no matter what the other person thinks. But others disagree. They object to he perceived stigma of an official declaration that they have behaved in such a way that the other could not reasonably be expected to live with them. In my entire career however, I’ve found a great deal of pragmatism, especially if the court is advised the allegations are not admitted but also not being defended because of the cost involved. That is usually enough. Alternatively allegations can be watered down and agreed and the court advised accordingly. I have only seen one actually make into the courtroom and we successfully obtained a decree of divorce for the client. Another years ago nearly made it. That involved parents who had sadly lost their child and the resulting grief led to the breakdown of their relationship. The case settled minutes – literally – before they were due in court. It was a sad day all round but huge sighs of relief were breathed by all us lawyers who would otherwise have had to battle over the conduct arising from the grief of the couple
So the law remains the law and as we learned yesterday there are no plans for change. I reluctantly agree. If it is to change a great deal of time and thought must go into what replaces it because there are so many possibilities, and Parliament isn’t the first stop. Faced with such a task, I foresee disaster. But there is a nagging thought in my mind that the unfortunate woman in this case appears to be a bit of a sacrificial lamb: an example of the unfairness of the law. As ever, and as I mentioned in my video blog post yesterday, cases like these ultimately boil down to the wisdom of the individual judges involved.
And there I rest my case.