For Better or Worse

The Supreme Court has recently dismissed a wife’s appeal of an order which dismissed her ‘unreasonable behaviour’ petition for divorce. She must now remain married to her husband until she can petition for a divorce based on the fact they have been separated for five years.

The original judge had dismissed her petition for various reasons including: that the allegations were flimsy, some where exaggerated by the wife in respect of their context and seriousness and some scarcely merited criticism of the husband.

The Supreme Court’s judgment sets out how uneasy the Judges felt about the current law, but the Judges recognised it was not their place to change the same.

Inflame a relationship

Lord Wilson noted: ‘family lawyers are well aware of the damage caused by the requirement under the current laws that … one spouse must make allegations of behaviour against the other. Such allegations often inflame their relationship, to the prejudice of any amicable resolution of the ensuing financial issues and to the disadvantage of any child’.

However, they felt in this case the appropriate consideration of the current law applied. Lady Hale hinted on dissenting and pointed out that there should not need to be a causal connection between the unreasonable behaviour referred to in the petition and the breakdown of the marriage. But she reluctantly dismissed the appeal, recognising the wife could petition for divorce in 2020 based on the fact the parties have separated for five years.

What application could this case have?

The judgment made it clear that the court felt uncomfortable with the current law. Lord Wilson went as far as to explicitly suggest Parliament considers whether to replace the current legislation in this area.

Indeed, many family lawyers and family law groups such as Resolution have been petitioning a for a change in law so that parties can apply for a non-fault based divorce.

Allegations being 'beefed up'

Since this case was dealt with by the Court of Appeal, Resolution members have reportedly seen an increase in allegations of unreasonable behaviour being ‘beefed up’ so that their clients do not fall into the same trap as the wife has done in this reported case.

If this remains to be the trend it could have a detrimental impact upon the parties ability to resolve matters arising form the break down of the relationship (such as a financial settlement and arrangements for the children) on an amicable basis.

For full copy of the judgment please click on the link below: