Is the act of refusing a divorce itself unreasonable behaviour?

divorce

I almost didn’t write this post, as after I had the idea for it I came across a thread on Twitter where the very same thing was discussed, and by far more learned (not to mention distinguished) people than I. However, upon reflection I decided that perhaps after all I could in my own small way add something useful to the debate.

The idea for the post comes, of course, from the outcome of the Owens case, in which the Court of Appeal handed down its judgment last Friday, dismissing Mrs Owens’ appeal against the refusal of the court to grant her a divorce on the basis of her husband’s ‘unreasonable behaviour’. I put that term in inverted commas as, despite it being in common usage, it is not technically correct, as some pedants experts have pointed out recently. Whilst expressing dissatisfaction with that outcome, the three Court of Appeal judges held that the judge in the court below had applied the law correctly, when he found that the allegations about her husband that Mrs Owens put forward were insufficient to amount to ‘unreasonable behaviour’.

All of which leaves us, as has been pointed out a thousand times since Friday, in the appalling position whereby the law is keeping Mrs Owens trapped in a loveless marriage. But is there a way through? Could it not be argued that Mrs Owens’ predicament is actually the fault of Mr Owens, in that he decided to defend the divorce, thereby putting her in this unhappy position? Could not Mrs Owens file a supplemental petition to include the act of defending the divorce as a further allegation of his ‘unreasonable behaviour’? After all, ‘unreasonable behaviour’ requires that the behaviour is such that the petitioner cannot reasonably be expected to live with the respondent – and who could reasonably be expected to live with someone who is forcing them to remain in a loveless, unhappy marriage?

Now the first, and obvious, thing to say about this suggestion is that it is clearly not how parliament intended the law to work. However, the present law was made fifty years ago. Attitudes towards marriage and divorce were quite different then, and surely the approach of the courts today should reflect the fact that what may have been acceptable fifty years ago is not necessarily acceptable now? The outpouring of indignation at the result of the case, including in the more conservative sections of the media, is a clear indication that society, or at least a very large part of it, doesn’t find this outcome acceptable.

But we need to look a little deeper into how the law operates. As I have written here before, the test for ‘unreasonable behaviour’ was established by Mr Justice Dunn in the 1974 case Livingstone-Stallard v Livingstone-Stallard:

“Would any right thinking person come to the conclusion that this husband has behaved in such a way that this wife cannot reasonably be expected to live with him, taking into account the whole of the circumstances and the character and personalities of the parties?”

Now, I can’t see how a supplemental petition by Mrs Owens can fail to pass this test. Most ‘right-thinking’ people would surely conclude, in such circumstances, that Mrs Owens cannot reasonably be expected to live with Mr Owens, as I suggested above.

But then there is (at least) one other point, which was made on that Twitter thread. When he chose to defend the divorce, Mr Owens was only doing what he was fully entitled to do under the law: stating that the marriage had not, as a matter of law, irretrievably broken down. And that course of action was fully justified by the decision of the lower court, and now the Court of Appeal, both of which agreed that Mrs Owens had not, as a matter of law, proved that the marriage had irretrievably broken down. In such circumstances, how could it possibly be said that Mr Owens had, by defending the divorce, behaved unreasonably? Even if it could, such an argument would surely not be allowed to succeed, as a matter of public policy.

My view is that, tempting though it is, any attempt to use Mr Owens’ defence of the divorce as evidence of his unreasonable behaviour would be doomed to failure. Sadly, there may be no way out of this impasse, at least until Mr Owens has a change of heart, or the parties have been separated for five years. All of which just adds fuel to the growing fires demanding the introduction of a modern system of no-fault divorce.

Image by Angelina Earley via Flickr

John Bolch

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

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4 comments

Andrew - March 28, 2017 at 8:27pm

Sorry, John, but the right to defend a divorce – like the right to defend any other legal proceedings – cannot be abolished by the back door. This needs Parliamentary action.
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Divorce should be no-fault and administrative. It really is that simple. But that will require statute.
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And if I were Mr Owens I would offer a two-year petition – on my terms as to financial relief!

Lymphads - March 29, 2017 at 11:59pm

Broadly, this must be right. It cannot be seen as unreasonable to defend any action on grounds that are at the least stateable. The thrust of the argument, though, is to look at grounds of divorce in general. Ought marriage to be at root an ordinary civil contract, dissoluble at will at its term (any time); or is it a special contract requiring particular conditions to be met to justify its dissolution? Should divorce always be in some respect conditional, or simply a matter of unilateral choice?

As lawyers in a society where marriage is regulated (though not constituted) solely by secular means (i.e. the formalities required for an entry in the Register of Marriages), we must in these circumstances lay aside all religious scruples: these are in the end solely for the couple themselves to determine.

Real no-fault divorce, divorce-at-any-time, is a nasty thing, exposing vulnerable parties to outright oppression, and providing the hasty with grounds to repent at leisure. Divorce after a period of separation, a cooling off period if one likes to call it that, is what we ought really to aim at. Given the present array of protective measures available to abused parties, few if any petitions really have to be brought immediately for reasons of physical protection. If concealment or abstraction of assets is a concern, there are already means to prevent dissipation of assets pending a final resolution.

Should the policy then be to:
1. eliminate all existing fault based grounds;
2. introduce one ground only, irretrievable breakdown demonstrated by more than one year’s separation;
3. Strengthen the existing financial remedies so that the one-year gap would not necessarily allow the wickedly minded to conceal or convert assets – an excellent encouragement to the wealthy party to co-operate in reaching a reasonable settlement?

At the same time, efforts could be made to rationalise the criteria for financial provision on divorce along the lines of the Scottish system, which is much more predictable and rational than a so-called needs-based system that is almost always perceived by one or other or both parties as unfair and unreasonable in its outcome.

JamesB - March 30, 2017 at 11:37am

I agree with Andrew’s last sentence, which is what I would advise Mr Owens also and how I would be thinking if I were Mr Owens.

I remember reading that Divorce is a bit self indulgent. I think I agree with that and that there is a lack of consideration for the children involved on this thread.

Women can and do go mental after birth of children, PND I think they call it. People can go mental anyway, and defending a divorce is prohibitively expensive for most, even when it is the petitioner doing the assaulting (as was the case with me).

So, on reflection, just scrap the UB ground.

Divorce on demand with pre and post nups, and for cases with children under three that ground is not allowed.

I may have more thoughts on this but will not post them today as I don’t want to block up the comments section. I do remain very pissed off with lawyers pushing UB petitions about as they have upsetting so many people, probably the fault of bad legislation needing amending, and that is the main point made by so many following this sad case.

Jessy Pocklington - April 4, 2017 at 11:43am

If the marriage in itself is not working anymore, then why should the state inhibit an individual his right to freedom? It doesn’t make sense. Divorce isn’t always a bad thing.

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