The prospects of so-called ‘no fault’ divorce making its way onto the statute books have been much improved after the Supreme Court expressed unease about an extremely rare case in which a woman failed in a bid to divorce her husband on grounds that their marriage had irretrievably broken down.
The couple had been married for almost 40 years and had two children together before the wife petitioned for divorce under Section 1(2)(b) of the Matrimonial Causes Act 1973 on the basis that she could not reasonably be expected to continue living with her husband. She cited 27 examples of his alleged moody, argumentative and disparaging behaviour. Very unusually, however, the husband contested the petition, arguing that the marriage had been largely successful.
In dismissing the petition, a family judge found that the examples of unreasonable behaviour given by the wife were flimsy and exaggerated and that those she particularly relied upon were isolated incidents. That ruling was subsequently upheld by the Court of Appeal, with the result that the wife was obliged to remain married.
In ruling on the wife’s challenge to the latter decision, the Supreme Court noted that contested divorces are thankfully very rare and that the expectation is that almost every petition issued under Section 1(2)(b) will succeed in short order. The test long applied to contested divorces involves an assessment of the impact of alleged unreasonable behaviour on the petitioner and an evaluation of whether it was unreasonable to expect a married couple to remain together.
In unanimously dismissing the appeal, the Court noted that the judge had correctly directed himself in law and had been in the best position to evaluate the evidence. The wife’s complaints about the judge’s ruling had already been considered and dismissed by the Court of Appeal.
By a majority, however, the Court expressed concerns about aspects of the judge’s analysis. In particular, the Court was uneasy about the summary dismissal of a petition which cited the husband’s claimed authoritarian conduct when only a few individual incidents of such alleged behaviour had been subjected to scrutiny. In the circumstances, the Court invited Parliament to consider replacing a law which had resulted in the wife remaining married against her will.