I recently wrote about the plight of Mrs O who had taken her case to the Court of Appeal over whether she could divorce her husband relying on his “unreasonable behaviour”.

The Court of Appeal has published its decision today and, unfortunately for Mrs O, it has decided that Mrs O is not able to divorce her husband as, in law, she has not been able to prove that her husband’s behaviour was unreasonable.
 

So where does this leave the parties? Sir James Munby (President of the Family Division) commented upon this question within his judgment:

“Mr Marshall [representing Mrs Owens] complains that the effect of Judge Tolson’s [the judge of first instance] judgment is to leave the wife in a wretched predicament, feeling, as she put it in her witness statement, unloved, isolated and alone, and locked into a loveless and desperately unhappy marriage which, as the judge correctly found, has, in fact if not in law, irretrievably broken down.”
 

However, Sir James Munby went on to say,

“As I observed during the course of argument, Parliament has decreed that it is not a ground for divorce that you find yourself in a wretchedly unhappy marriage, though some people may say it should be.”
 

In effect, the judge reiterated that it is Parliament who makes the law and the role of the judge is to apply the law. Mrs O is, it seems, in a loveless marriage but as a matter of law, her complaints were not of a nature which amounts to the legal definition of unreasonable behaviour and, further, an unhappy marriage is not a legal basis for a divorce. She now has to wait until February 2020 and try again, but this time basing her petition on the fact that they have been separated for five years.
 

Lady Justice Hallett however commented,

“I very much regret that our decision will leave the wife in a very unhappy situation. I urge the husband to reconsider his position. On any view, the marriage is over. I can only hope that he will relent and consent to a divorce on the grounds the parties have lived apart for a continuous period of two years, rather than force his wife to wait until five years have elapsed.”

How does this impact upon others who seek to rely upon unreasonable behaviour?

Cases like this are very rare. Within this judgment, the court commented that in the year to January 2017 there were 113,996 petitions for divorce in England and Wales and, whilst there are no figures for how many of these were defended all the way through to a contested hearing, the judge estimated this figure to be approximately 0.015%. Had the husband allowed this petition to proceed on an undefended basis, the outcome may well have been very different.

The majority of divorces (just under 98% in the year to January 2017) progress on a purely undefended basis from the outset, meaning that both parties agree the contents of the divorce petition and are content with the judge granting a divorce. Such petitions receive much less judicial scrutiny and are more readily approved by a judge.

Guides for solicitors suggest that it is good practice to keep allegations of unreasonable behaviour as anodyne as possible with just enough to pass the threshold of what is unreasonable. For many cases, this is unlikely to change, but in some cases (principally, those where there is a prospect of the petition being defended) solicitors are now more likely to err on the side of caution and advise their client to include much more serious and upsetting allegations within the divorce petition to avoid the situation in which Mrs O now finds herself.

Is this really the best way to resolve a divorce when emotions are already likely to be heightened? Is it not time for Parliament to legislate to allow for couples to divorce on a more amicable, no-fault basis? Whilst it will provide little comfort for Mrs O, this case brings this difficult issue to the public eye and may lead to debate over whether it is time to change the law.