Defended Divorce in Court of Appeal

21st February 2017 Family Law

The issue of the lack of provision for 'no fault' divorce in English and Welsh law has once again arisen this week, as the Court of Appeal heard arguments from a couple embroiled in divorce proceedings following a 37-year marriage.

The wife, aged 65, had petitioned for divorce from her 78-year-old husband on the grounds of the irretrievable breakdown of the marriage owing to his unreasonable behaviour, citing examples of his 'continued beratement' regarding an extra-marital affair she had engaged in in 2012. The husband defended the divorce petition, stating that he had forgiven his wife and moved on, and wished them to remain married in and spend their old age together. The judge at the first instance found that the husband's behaviour had not been unreasonable in the circumstances, and that she had 'exaggerated the context and seriousness of the allegations to a significant degree'. He therefore refused the wife's divorce petition.

At the Court of Appeal, the wife's representatives argued that this decision amounted to trapping her in the marriage, unless the husband changes his mind and consents to the divorce, until a period of 5 years have passed since the parties separated. At that point, under current legislation, it will be open to the wife to petition for a divorce on the basis of 5 years' separation, which she can do without the husband's consent.

The husband's representatives, in contrast, argued that the judge at first instance had been entitled to reject the wife's case, and rejected any calls to alter the law as it currently stands, stating that such considerations were a matter for parliament.

As was noted by the wife's lawyers in this case, it is unusual for the Court to dismiss a divorce petition. However, it remains open to a Respondent to defend a divorce petition and therefore open to the Court to find in the Respondent's favour in such cases.

It remains to be seen what the outcome of this case will be, as the Court of Appeal has reserved its judgment until later date. The widespread media reports of the case will no doubt prompt further calls for the law to be amended to allow for divorce with no allegations of fault being made, without parties having to wait half a decade to legally end their marriage.

However, despite a poll published this month which showed that 69 per cent of people questioned support the introduction of a 'no-fault divorce', the government says it has no plans to reform current divorce law.

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David Pickering is a Partner and Head of Department located in Manchesterin our Family department

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