Wife Refused a Divorce
The recent case of Owens v Owens  EWCA Civ 182 made the headlines as the wife was refused a divorce. The parties had been married for 37 years and the wife had filed a petition based on the husband’s unreasonable behaviour. The husband did not want a divorce and defended the proceedings. This resulted in a hearing which necessitated both parties giving oral evidence. The test was whether the respondent (husband) had behaved in such a way that the petitioner (wife) cannot reasonably be expected to live with the respondent. The wife’s petition was dismissed. She appealed the dismissal but that was also dismissed.
The majority of petitions filed on unreasonable behaviour are not defended by the other party. They may not necessarily agree with the allegations but nevertheless decide to allow the petition to go ahead on an undefended basis. As a result there is no need for the court to “test” whether allegations are true or false.
Section 1(2)(b) of the Matrimonial Causes Act 1973 says:
“1 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 –
(b) That the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent;”
The Law Society’s Family Law Protocol sets out the following guidance to solicitors when drafting a petition based on unreasonable behaviour:
“Where the divorce proceedings are issued on the basis of unreasonable behaviour, petitioners should be encouraged only to include brief particulars sufficient to satisfy the court.”
Whilst the vast majority of petitions proceed on an undefended basis and indeed the threshold for behaviour petitions appears to be lower than 30 years ago, we do not know at this stage if Owens v Owens will have an impact upon what allegations are considered by the court to be sufficient to satisfy the test that the petitioner cannot reasonably be expected to live with the respondent.
Whether the evidence is sufficient is not tested until the Petitioner applies for a date for the Decree Nisi. This is when the file is passed to the District Judge to consider the contents of the petition. If the District Judge agrees that the evidence is sufficient then a date will be given for pronouncement of the Decree Nisi. If not, the petition will be refused, which may result in the petition being amended to include further allegations or waiting for a period of separation of 2 years (by consent) or 5 years.
You should not be deterred from issuing a petition on unreasonable behaviour should that be the appropriate way forward for you and we are happy to advise you on that and alternative options for you.
The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. The law may have changed since this article was published. Readers should not act on the basis of the information included and should take appropriate professional advice upon their own particular circumstances. (50587)