Walking the tight rope to a divorce – the unreasonable behaviour has to be bad enough or a judge must ‘nod it through’ – some divorces fail!
Tinie Owens 65 was refused a divorce last week after 39 years of marriage, when her husband convinced the judge her claims of being stuck in a loveless marriage were insufficient to justify a divorce. Mr Owens, a 78-year-old farmer, argued that his behaviour, which his wife had described as being unreasonable, was nothing of the sort, it was part of normal married life. The judge agreed with him and refused to grant the divorce.
A small number of divorces are defended each year most of them not with the aim of staying married – they are combined with a cross petition, as the respondent does not want to be technically to blame for the divorce and so seeks to get a divorce based on their spouse’s behavior, not theirs. These defended cross petitions often end with a Decree Nisi of divorce being granted on the petition and the cross petition, so both parties are technically to blame. Blame does still feel very important to many people – understandably so as we have an antiquated fault-based divorce system unless you are happy to wait two years to divorce with consent or five years with no consent. We have over the years mediated the grounds for divorce petitions and how people divorce many times.
Very occasionally someone defends their divorce on the basis they want to stay married.This happened to a husband I represented when I was in family law practice. The wife’s petition followed the Resolution Code of Practice and enumerated the bare minimum her adviser considered to be necessary to secure a divorce. So far so normal. However, the judge disagreed the behaviour was enough for a divorce, saying that whilst this wife might have been disappointed in her marriage, there was nothing adequate to justify a divorce.
I’m surprised to see the Owens case proceeding via the appeal system – as there is a much simpler if rather less dramatic way of dealing with these cases. In the case in which I was involved, the wife amended her petition to expand the allegations of unreasonable behaviour, so they gave more detailed accounts of unhappy incidents in the marriage and she could be divorced. Even if Mr Owens does not like this or agree to it, it remains an option – then there is no possibility of the particulars of unreasonable behaviour being found to be insufficient, assuming they are true. It is simply a question of how intrusive the judge sees fit to be – as in any marriage if one spouse wants a divorce, they will get it one way or another. However, the whole palaver is ridiculous – the Owens case demonstrates beautifully why our out-moded fault-based divorce laws need to be reformed. The current divorce law causes unnecessary pain, costs and delays and exacerbates the difficulties of couples whose relationships are over.