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Is this 'unreasonable' enough? Can I now have my 'divorce' please?

Date:9 AUG 2017
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Family law expert, Lawyer

Stala Charalambous is a family law expert

Family Justice Reformed (second edition: June 2017) contains detailed commentary on the Single Family Court and the Children and Families Act 2014, Pts 1 and 2 (which deal with family justice), including clear and comprehensive guidance on the underlying procedural regime and the rationale for the reforms.

21st Century mayhem. The case of Owens v Owens [2017] EWCA Civ 182 has sent ripples of shock waves; created uncertainty and has led to clients insisting on making their petitions for divorce or dissolution more ‘acrimonious’. This is (they say) to ensure that they have provided sufficient evidence to show that the marriage has irretrievably broken down and that the respondent’s behaviour was so unreasonable that the petitioner can no longer tolerate or be expected to live with the respondent. In essence, they are seeking to avoid a repeat of the decision in Owens v Owens.

In England and Wales we do not have a ‘no fault' divorce system. To divorce in England and Wales it must be shown (by the person applying for a divorce, known as the petitioner), that the marriage has irretrievably broken down based on one of five facts: adultery; unreasonable behaviour (of the other party not your own); 2 years' separation with consent; desertion; or 5 years' separation.

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Section 1(2) of the Matrimonial Causes Act 1973 states that:

‘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”).

The Family Law Protocol

The Law Society's Family Law Protocol, ed 4, 2015, para 9.3.1, identifies guidelines which should be followed in drafting a divorce petition. Guideline 2 is in the following terms:

'Where the divorce proceedings are issued on the basis of unreasonable behaviour, petitioners should be encouraged only to include brief details in the statement of case, sufficient to satisfy the court, and not to include any reference to children.'

Many family lawyers belong to Resolution and abide by its code. Resolution members seek to keep the channels of communication open between couples separating. Family lawyers are encouraged to professionally avoid using inflammatory language and to keep allegations in a divorce petition to a minimum; sufficient to satisfy the judge that the marriage has irretrievably broken down but not so aggressive that it would antagonise the other spouse who is referred to as a respondent.

The aim of a Resolution family lawyer is to try to assist a client to find the best solution for their client and family in the most expedient, cost efficient and amicable way that they can. This is important, in particular when there are financial issues to be dealt with and where child arrangements need to be agreed. I always remind clients that they are parents for life even if they do not wish to be partners for life. Toing and froing in litigation increases legal costs. I find myself asking clients: ‘Would you rather put the money in your lawyer’s pockets or your own? Think about what you are doing.’

On 30th November 2016 Resolution members (including myself) lobbied Parliament to address several issues that need to be looked at and where legislation needs to be reformed. One of them was to introduce a ‘No fault divorce system’. This is not so as to make applying for a divorce easier; it is to make it less acrimonious. There is a huge difference.

It may be an idea to introduce, as a pre requisite to applying for a 'no fault' divorce that both parties attend at least one marriage guidance counselling session, in a similar vein to encouraging parties to attend Mediation as a pre requisite to issuing the financial remedies proceedings on divorce or dissolution.

‘Unreasonable behaviour’

The reason of ‘unreasonable behaviour’ is one commonly used by a petitioner in England and Wales when applying for a divorce, as it does not require either the other spouse’s consent or to wait several years before a petition for divorce can be issued.

What is unreasonable behaviour?  

Unreasonable behaviour can include physical and mental abuse. There does not have to be physical violence. Mental cruelty is also unreasonable behaviour in a relationship. Examples of unreasonable behaviour can include lack of affection and lack of emotional support and belittling a spouse in front of friends and family which can have a profound detrimental effect on a spouse.

What needs to be stated in the statement of the petition for a divorce or dissolution, is firstly, the nature of the respondent’s behaviour that the petitioner finds intolerable and secondly the effect of the respondent’s behaviour on the petitioner which causes the petitioner to feel that he/she can no longer continue to live with the respondent. The court in Owens v Owens were referred to the history of the marriage and the personalities of Mr and Mrs Owens.

In the case of Ash v Ash [1972] Fam 135, 140, Bagnall J said:

'The general question may  be expanded thus: can this petitioner, with his or her character and  personality, with his or her faults and other attributes, good and bad, and having regard to his or her behaviour during the marriage, reasonably be  expected to live with this respondent?'

In the case of Owens v Owens, the court did find that the marriage had irretrievably broken down but did not accept that Mr Owens behaviour was so intolerable to the extent that Mrs Owens could not be expected to live with him. Tini Owens has been granted permission to appeal to the Supreme Court. The huge question that now remains is will Parliament review the law relating to divorce and introduce a ‘no fault divorce’ system in England and Wales?

Deciding to separate and divorce is difficult enough without feeling that you have to ‘wash your linen in court with a particular soap powder’ and that you have to state on paper intimate details to support why you can no longer tolerate to live within the marriage with the respondent. How does it help for a respondent to see in writing a full, lengthy aggressive statement from the petitioner? How will this affect the negotiations in relation to the finances or the discussions in relation to the child arrangements? The niggly comments on the petition will bite back and keep jumping off the page. It will create hostility instead of harmony. This will not be in the interests of any children.

The case of Owens v Owens involved Mrs Owens issuing a petition for divorce based on her husband’s behaviour which she stated was unreasonable and which had led to the marriage breaking down irretrievably. Mr Owens defended the petition for divorce asserting that the marriage had not irretrievably broken down. Judge Tolson refused to grant Mrs Owens her decree nisi (decree nisi is the certificate issued by a court to confirm that it considers that the marriage has irretrievably broken down and that the petitioner is entitled to a divorce based on the reason stated in the petitioner's petition) as he did not consider the marriage had irretrievably broken down due to Mr Owens behaviour to the extent that she could not live within the marriage. He stated:

'I have not found this a difficult case to determine. I find no behaviour such that the wife cannot reasonably be expected to live with the husband. The fact that she does not live with the  husband has other causes. The petition will be dismissed.'

Mrs Owens appealed this decision and the appeal was dismissed. The Appeal Judges concluded that they could not ‘interfere with Judge Tolson's decision to refuse the wife the decree of divorce she sought’.

Mrs Owens is now ‘locked’ into a marriage she finds intolerable, until she can in due course either bring a petition for divorce on the basis that the parties have lived apart for a continuous period of 5 years (provided no grave hardship is established by Mr Owens if the divorce were to be permitted for this reason) or Mr Owens consents to the divorce after both he and Mrs Owens have lived apart for a continuous period of 2 years.

There has been no progress made since Richard Bacon MP introduced the Bill in 2015 ‘aimed to allow ‘no fault divorce’.

Catherine Fairbairn prepared a detailed report on no-fault divorce latest statistics on divorce in England and Wales published on 21 June 2017).

The House of Commons briefing paper published on 12 April 2017 states the arguments for and against a ‘No fault Divorce system’ and also the government’s position to be as follows:

‘The Government has indicated  that any proposals for legislative change to remove fault from divorce would have to be considered as part of its more general consideration of what further reform may be needed to the family justice system’.

In August 2017 a new form for the petition for divorce/dissolution/judicial separation (D8) was introduced. This new version of the petition is designed to be easier to follow for those wishing to make an application in person themselves without a lawyer. A statement will still need to be completed to show why the marriage has irretrievably broken down although there are helpful notes to the petitioner on the right hand side of the form which should be read very carefully when being completed to avoid the petition being returned by the court and not issued.

In the event that the petitioner seeks to rely on the fact of ‘unreasonable behaviour’ as having caused the marriage to irretrievably break down, there is an explanation on the new petition form on the right hand side stating what is required:

‘You should include examples of  your spouse's/civil partner's behaviour which affected you the most, and the most recent incidents. You can describe how they have behaved over a period of  time or use particular incidents. Include dates if relevant. Provide enough  detail to satisfy the court that you cannot reasonably be expected to live with  them. Please remember that they will be sent a copy of this application’.

There is however the danger that if a petitioner makes the petition for divorce too acrimonious, this will antagonise the other party who may choose to defend the divorce proceedings. It may also make negotiations in relation to the children and the financial matters on divorce more difficult which could give rise to more complex, contested court proceedings.

It is advisable that anyone contemplating issuing a divorce petition seeks independent legal advice from the outset, whether or not there is an intention to issue the petition for divorce as a litigant in person. A lawyer will advise on the various options and give you a sense of direction.

The latest statistics on divorce in England and Wales published on 21 June 2017 by the Office for National statistics show that:

‘The percentage of marriages ending in divorce has generally increased for those marrying between the early 1970s and the early 1990s. For example 22% of marriages in 1970 had ended by the 15th wedding anniversary, whereas 33% of marriages in 1995 had ended after the same period of time. For those marrying since 2000, there is some evidence of decreases in the proportion of marriages ending in divorce. The proportion of men and women who had ever divorced has also declined over recent decades.

The cumulative percentages of  marriages which end in divorce increase more rapidly in the first 10 years of  marriage than the 10 years after that. Once the 20th wedding anniversary is  reached, the cumulative percentages increase less rapidly.’

Although it was stated that at the time of publication the UK figures for marriages, divorces and civil partnership dissolutions in 2015 were not yet available, the statistical report did indicate that there were:

‘1,014 civil partnerships formed in the UK in 2015, a decrease of 55% from 2,229 in 2014; this decline results from the introduction of marriages of same sex couples in England and Wales and Scotland in 2014.’

The decrease in civil partnerships taking place may be due to same sex couples being able to now marry.

A provisional date of September-October 2017 has been given as the next release date by the Office for National Statistics of its further updating bulletin.

Had a ‘no fault divorce system’ been introduced, it would have been interesting to see the effect of this on the divorce rate, and whether the number of cases going to trial in relation to the financial remedies on divorce would reduce, if couples could deal with matters in a less acrimonious way and try to find solutions that is best for the family.

The law applicable in this article is that in England and Wales as of 8 August 2017. While every effort has been made to ensure the accuracy of the  information in this article, it does not constitute legal advice and cannot be  relied upon as such. The writer does not accept any responsibility for  liabilities arising as a result of reliance upon the information given.