A hearing took place last week in the Court of Appeal which has caused consternation among family lawyers. For the first time in living memory, the Court was hearing an appeal about a divorce.
It is extremely rare for divorce proceedings to be defended. It is rarer still for a divorce not to be granted by the court even where it is defended. An appeal is pretty much unheard of.
The reality is that it is not particularly difficult to get divorced. The ground for divorce is that the marriage has to have irretrievably broken down, which you show by alleging one of five different “Facts”. As long as you choose the right “Fact”, the divorce will go through. If there has been no adultery (or at least no adultery that is admitted by the Respondent) and you don’t want to wait until you have been separated for two years and get divorced then with your spouse’s consent or after five years without the need for consent, then the only remaining option is a divorce alleging unreasonable behaviour. (There is also a fifth option – a divorce based on the Fact of two years’ desertion, but it is extremely rarely pleaded).
Unreasonable behaviour divorces are the great catch-all of divorce. I advise clients that there is almost always something that will allow there to be a divorce on this basis. No-one is perfect. Everyone behaves unreasonably at some point or another. I reckon that I could draft an unreasonable behaviour petition for almost anyone, husband or wife, regardless of the state of their marriage.
As a result, there are more unreasonable behaviour divorces than any other type; perhaps as many as 54% of all divorces according to some sources.
Normal practice is for the Respondent to be advised to deny behaving unreasonably, but to nevertheless not defend the divorce. In fact, I have never advised anyone to defend an unreasonable behaviour divorce petition and I struggle to conceive of the circumstances in which I would do so. I take the view that if one party to a marriage has decided that it’s over, then it’s over and refusing to accept that reality will do nothing but cause vast heartache and expense. I suppose that if I had a client who had a strong moral or religious objection to divorce, perhaps because they might be ostracised by their community, then it might be worth defending, but the chances of successfully defending the divorce are still dreadful.
In this most unusual case, the judge at first instance, His Honour Judge Tolson decided that the wife’s allegations were “of the kind to be expected in marriage” and refused to grant a divorce.
He described her allegations as “exaggerated” and “at best flimsy“, “minor altercations of a kind to be expected in a marriage” and “an exercise in scraping the barrel“. It makes you wonder if Judge Tolson is aware that most family solicitors are members of Resolution, whose Guide to Good Practice expects us to keep allegations of unreasonable behaviour to a minimum.
The judge also found that the wife was “more sensitive than most wives” and that she had “exaggerated the context and seriousness of the allegations to a significant degree“.
The wife appealed. Judgement has been reserved; in other words the appeal judges have gone away to have a think about it and will deliver their judgement at a later date.
However, it is not just the sheer rarity of the divorce appeal that has amazed family lawyers, it is the realisation that we may all have not been getting the law quite right for years.
I usually tell clients that “unreasonable behaviour” is behaviour that is so unreasonable that you should no longer be expected to live together. But, I’m slightly embarrassed to say, that is not quite right. In fact section 1 (b) Matrimonial Causes Act 1973 defines the Fact as “that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent”. That is not quite the same.
In my defence, I can only plead that this is a piece of law that is so frequently used by lawyers that I suspect most of us have not read it recently. In any event, the distinction will make no difference in the vast, vast majority of cases.
There has been no law report released for the original trial, so I can only base my comments on what I have read in the press, who generally focus on the juicier aspects of a case rather than the more subtle legal points. As far as I understand it, the argument that counsel for the wife put forward in the appeal is this; the husband’s behaviour need not be unreasonable, it just needs to be behaviour of a nature that means that the wife shouldn’t have to live with him anymore.
For example, the wife accuses her husband of constantly “berating” her about an affair. Berating your wife for having an affair might be understandable. (I think that most people would accept that if you find out your wife has been unfaithful, you probably have a right to be upset and you are likely to speak angrily to your wife. Whether “berating” is reasonable will, I suppose, depend upon what it involves and how long it goes on for. If it crossed the line from an argument into domestic abuse, it clearly would not be. I stress that there does not seem to be any suggestion of domestic abuse by the husband here.)
Therefore, the argument seems to be that it is irrelevant whether or not the husband’s behaviour is reasonable or not. The test is – is it reasonable for the wife to be expected to remain with the husband given his behaviour (whether he was being reasonable or otherwise)? It is all about how the wife perceives the behaviour. Is it unreasonable in her eyes?
For a much more erudite description of the law and this case by a far better blogger than me, click here.
This case has apparently cost the wife £80,000 in legal fees so far, plus £20,000 that she was ordered to pay toward her husband’s costs when she lost the original trial. This just emphasises the need for no-fault divorce to be adopted in this country. I won’t rehearse the arguments about no-fault divorce in this blog (but if you want to know more you can read my previous blogs about it here), I will just add that this whole sorry episode shows that our current divorce laws are old-fashioned and downright undignified.
Furthermore, I think the wife is going to win. Assuming she wins, it seems to me that there are two alternative outcomes. The Court of Appeal may come to the conclusion that Judge Tolson got it wrong and the allegations of unreasonable behaviour do amount to behaviour that renders it unreasonable to expect the wife to continue to have to live with the husband.
Alternatively, the court might accept the wife’s argument that it does not matter if the husband’s behaviour is unreasonable or not, all that matters is how the wife perceives it. If so, surely that means that you can divorce for any reason.
If you can divorce for any reason, then you can divorce for no reason at all. In other words, no fault divorce.
I may be being too clever for my own good. It reminds me of a passage from The Hitchhiker’s’ Guide to the Galaxy about the Babel Fish. If you have never read it, all you need to know is that the Babel Fish is a fish that you put in your ear and it then translates alien languages for you:
“Now it is such a bizarrely improbable coincidence that anything so mind-bogglingly useful could have evolved purely by chance that some thinkers have chosen to see it as the final and clinching proof of the non-existence of God.
The argument goes something like this: “I refuse to prove that I exist,'” says God, “for proof denies faith, and without faith I am nothing.”
“But,” says Man, “The Babel fish is a dead giveaway, isn’t it? It could not have evolved by chance. It proves you exist, and so therefore, by your own arguments, you don’t. QED.”
“Oh dear,” says God, “I hadn’t thought of that,” and promptly vanishes in a puff of logic.
“Oh, that was easy,” says Man, and for an encore goes on to prove that black is white and gets himself killed on the next zebra crossing.”
― Douglas Adams, The Hitchhiker’s Guide to the Galaxy
19 February 2017