If you ask most people, they will tell you that you can get divorced for irreconcilable differences. What they are often not aware of is that divorces can be defended. To defend a divorce you have to give one of five statutory reasons for the breakdown of the marriage. When told this they are generally astounded and for some minutes., they don’t quite believe me when I tell then them the reality.
Following on from that, most people who want to get divorced quickly rely on the statutory reason of “unreasonable behaviour”. To rely on this, you have to give 4-5 examples of your spouse’s unreasonable behaviour.
There is a divorce case going through the senior courts, widely reported in the press, where a judge has refused to grant a wife her divorce saying that she had failed to prove that her husband had behaved in such a way that she cannot reasonably be expected to live with him. The relevant law dates from 1973 and, much to the frustration of most family lawyers and reasonable commentators, it has not been updated to provide for a “no fault divorce”. Incredibly, the judge looked at the wife’s papers and said that the marriage should continue even though the wife said:
-the husband prioritised his work over his home life;
-the husband did not provide the wife with love, attention or affection;
-the husband was unpleasant and disparaging about the wife to family and friends;
-the husband speaks about the wife in a critical and undermining manner; and
-as a result of the husband’s behaviour the couple had lived separate lives under the same roof for many years and have not shared a bedroom for several years.
The husband characterised the wife’s complaint as ‘very much the stuff of everyday married life’. The wife submitted stronger complaints, including an airport exchange in raised voices and an embarrassing scene at a restaurant. These allegations were investigated in some detail over the period of one day. In the end the judge concluded they were insufficient to pass the test set out in the law. The Court of Appeal agreed and the matter is now likely going to the Supreme Court.
The upshot is that the couple, particularly the wife, now must stay married. This is a very rare case. The Court of Appeal estimated something like .15% of divorces end up in this type of litigation. It is very important to avoid this where possible. At the early stage, it should be established whether or not both parties wish to divorce. This is why we normally provide draft petitions for the other party to comment upon before going to the court. However, if there is any chance that the other party may seek to delay or become difficult, draft your petition well. It is important for the petition to be sufficiently robust to pass the legal test. Here, the desire to make a difficult process as amicable as is possible must be counterbalanced by the chance the other party may become difficult and attempt to obstruct the process.
For more inforamtion on the process of getting a divorce please see our family law guide on “how do I get divorce?”
An extended version of this blog can be found at “Can I get divorced for irreconcilable differences?”
This is where a specialist solicitor comes in. If you would like to speak with me, Randal Buckley, call me on 0203 150 2525.