There are reports of an unusual case heard in the Court of Appeal recently: a wife appeals against a judge’s refusal to grant her a divorce from her husband because she can’t stand his behaviour any more and says the relationship has broken down irretrievably.

We don’t have the judgment of the Court of Appeal yet (the hearing has finished but reports are they have reserved their judgment until another day), and nor do we have the judgment from the original divorce proceedings. But there are some quotes from the original judgment in the press coverage, so we can make a start at exploring what may be going on.

At face value it seems extraordinary that a judge in the modern day and age should refuse to grant a wife who is obviously thoroughly miserable a divorce if she wants one. However, although many think we should, we don’t have no fault divorce in this country – and anyone who is unhappy in their marriage has to meet the statutory test for getting a divorce, which has been the same since 1973.

The relevant law can be found in section 1 of the Matrimonial Causes Act 1973 (MCA). Someone who wants a divorce has to prove that the marriage has broken down irretrievably AND that one of five scenarios applies. These are :

  • adultery,
  • desertion (2 years),
  • separation for 2 years (and both agree to a divorce)
  • separation for 5 years (regardless of agreement), or
  • so-called “unreasonable behaviour”.

Why “so-called”? Because in fact the MCA doesn’t actually use the term “unreasonable behaviour” at all. This term has become a sort of convenient but inaccurate short-hand (often used by lawyers – tut tut) for this basis for divorce. See the relevant bits of section 1 here :

(1) Subject to section 3 below, 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—

(a) …[adultery]

(b) that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent;

(c) …[desertion for 2 years]

(d) …[2 years separation with consent of both parties]

(e) …[5 years separation]

(3)… it shall be the duty of the court to inquire, so far as it reasonably can, into the facts alleged …

(4)If the court is satisfied on the evidence of any such fact as is mentioned in subsection (2) above, then, unless it is satisfied on all the evidence that the marriage has not broken down irretrievably, it shall…grant a decree of divorce.

So, “unreasonable behaviour” is a sort of mash-up of the behaviour of the respondent (the person whose spouse has asked to divorce) and the petitioner (the one who wants the divorce) saying that as a result of the behaviour it isn’t reasonable to expect the petitioner to live with them. The behaviour itself doesn’t have to be unreasonable. We could get very technical here about how the test as it is correctly set out is a subjective test (is it unreasonable from the petitioner’s perspective to be expected to carry on living with his / her other half?), but it is probably best to await the judgment of the Court of Appeal to see how all this is tackled.

In many cases this issue of precisely how the act is phrased doesn’t make any difference at all. Most petitions include some allegation that is capable of satisfying either version of the test – the Respondent is said to have done something insensitive or unpleasant or abusive that could be said to be unreasonable AND could be used to say it wouldn’t be reasonable to expect the petitioner to continue living with it. In any event almost all divorces are unopposed and so the order will go through without either party needing to come to court at all (as long as the court considers that there is enough in the petition to justify a decree). This is what is often referred to as a “quickie divorce” by the press in celebrity cases. The hearing is short, but it is pretty meaningless to call it a “quickie” as the process is just the same speed as any other divorce.

The press coverage

In coverage in The Times, the advocates are reported as making the following submissions on the appeal :

[Counsel for the wife] … “There doesn’t have to be violence or threats of violence or gambling or drinking or shouting. There is a cumulative effect of what may be regarded as inconsequential conduct, which may justify a finding that it is unreasonable to expect her to stay with him,” he added.

He called for a change to divorce law in England and Wales, which obliges a petitioner to prove fault for immediate divorce but will accept simple separation plus consent after two years and separation alone after five years. The vast majority of divorces are undefended, with partners agreeing to separate.

[Counsel for the husband] replied that the original high court judge who had denied the divorce was “entitled to reject the wife’s case that the cumulative impact of the husband’s behaviour was unreasonable”.

Note that the Appellant Wife’s counsel focuses correctly on the question of what is reasonable for the wife, whereas counsel for the husband appears to characterise the wife’s case as being that the husband’s behaviour was unreasonable.

It would be a bit rich of us to be too rude about coverage of this case that muddles this issue of terminolody when even lawyers regularly use “unreasonable behaviour” as shorthand. Here, even the lawyers in the case don’t seem to be able to agree about it!

However, The Telegraph were guilty of some “unreasonable behaviour”, and possibly other publications have done the same.

Only The Guardian found themselves unable to resist mentioning that this extraordinary divorce battle was heard on Valentines Day.

The Sun coverage contains significantly more detail about the remarks made by the appeal judges as they heard the case, which are quite interesting in themselves – they ponder about what “old school” might mean, offering different possible interpretations, and some reported remarks suggest some discussion of the importance of context in assessing the significance of apparently trivial behaviour.

The coverage has got very caught up with a renewed push for no fault divorce to be brought forward by the Government, and with reports that the Government has said no. Controversy over the state of divorce law is chronic, and has long been a political hot potato. As counsel for the wife no doubt knows, the Court of Appeal cannot change the law, they can only apply the law (however daft it may or may not be) to the facts of the case – although they must interpret the law as far as is possible in accordance with  the parties’ human rights (for example article 8). We don’t know to what extent human rights were a feature in this case, although it does appear human rights were relied upon by the wife, based on quotes of things said in the hearing from The Sun.

We can’t leave the coverage without remarking on the entirely gratuitous mention in the Times article of the Judge’s personal marital history, including details of his wife’s death, which do not seem to have any legitimate connection to the case being reported on. They can only have been included in order to encourage readers to infer that the judge’s own personal history is somehow causally connected to his treatment of the wife in this case.

The decision

There has been some consternation about reports of the judges’ references to the marriage (or the husband) being “old school”, and his reported suggestion that the wife should have simply tolerated the husband’s behaviour.

For example, The Telegraph say :

But the judge described her allegations against her husband as “exaggerated” and “at best flimsy”, claiming they were “minor altercations of a kind to be expected in a marriage” and “an exercise in scraping the barrel”.

Judge Tolson also found that Mrs Owens was “more sensitive than most wives” and that she had “exaggerated the context and seriousness of the allegations to a significant degree”.

It’s unclear whether the judge’s reported remarks in this area indicate a muddling up of whether or not the husband was behaving unreasonably with whether or not it was reasonable for this (sensitive) wife to say she wanted out. One might argue that if the husband’s behaviour (however trivial) had made the wife so terribly unhappy for so long it was entirely reasonable for her to want out, even if she was oversensitive. We will have to see how the case was argued at the original trial and on appeal – and what the Court of Appeal makes of it.

It is worth noting that if as reported the wife has been living separately from her husband since 2015 it cannot be too long before she would be eligible to divorce on the grounds of 2 years separation – if her husband would consent, which seems rather unlikely. If her appeal fails she would have to wait a further 3 years before she could obtain a divorce (unless there were some change in circumstances).

Feature pic : RCJ, courtesy of Juuso Herranen on flickr – thanks!