Wednesday, 9 August 2017

Will Wife Gain Freedom From Marriage?

Remember the wife married for 37 years and denied a divorce by a Family Court judge and then by the Court of Appeal because they were not satisfied that the conduct of her husband  she complained about amounted to unreasonable behaviour (http://www.breakinglaw.co.uk/search/label/divorce)? Yesterday, she was granted permission by the Supreme Court to appeal to them against the decision. The Justices there who considered her plea for permission were Lady Hale, Lord Wilson and Lord Hughes.

The original judge who heard evidence from both wife and husband looked at the wife's 27 separate allegations which she contended cumulatively amounted to unreasonable behaviour on her husband's part. In order to succeed, she had to show that her husband had acted in such a way that she could not reasonably be expected to live with him. The test was an objective one - what would a reasonable person have reckoned of the husband's conduct - but taking into account the wife's particular sensibilities. It was accepted on her behalf that some of the allegations would not individually seem particularly serious but contended that, taken cumulatively, the effect on the wife of what the husband did was to wear her down.

But the judge decided that the allegations against the "old school" husband who admitted to having a loud voice, were flimsy, at best. He was satisfied that the wife had exaggerated the content and seriousness of the allegations to a significant extent. They were all at most minor altercations, he said, of  a kind to be expected in a marriage. Some are not even that.

It may well be argued in the Supreme Court when the appeal is heard that, given the evidence, the original judge's findings were perverse and that insufficient weight had been given to the sort of person she was and how she would be affected by the husband's conduct.

The law of England and Wales fails to allow for 'no fault' divorce. The party who brings divorce proceedings has to rely on the other party's adultery, unreasonable behaviour or desertion lasting for at least two years. Otherwise, there can be a divorce on the basis that the couple have been apart for two years and they both agree to divorce. Without an agreement, the separation must last for at least five years before it can become the basis for a divorce petition and such a petition is very hard to successfully defend provided the separation has really lasted that long. For civil partnerships, the position is similar.

The wife in this latest case will have to wait for another two and a half years before her separation reaches five years in duration if the Supreme Court does not reverse the decisions of the other courts.

Much more on divorce and civil partnership dissolution in my book, Breaking Law