A ‘quickie divorce’ is a term often used to indicate proceedings haven’t been contested and neither party has had to go to court. In Lawyer speak, it’s called ‘the special procedure’, though as less than 1% of divorce petitions are now defended, it should perhaps be known as standard procedure. But what happens if a case is contested?
To get divorced, it must be proven that the marriage has broken down irretrievably. This can be achieved by establishing ‘fault’ through adultery, ‘unreasonable behaviour’ or separation grounds. A behaviour petition needn’t be detailed – half a dozen examples to demonstrate the behaviour and its effect but, as a case recently reported in the media shows, what constitutes ‘unreasonable behaviour’ can be subjective.
In this case, the wife (Mrs Owen) made a petition which told of her husband’s mood swings, lack of affection, prioritisation of work over family life and ugly incidents in public. While thousands of similar petitions will have gone through on these grounds, what is unusual is that Mr Owen defended the claim, stating he did not behave that way, meaning the Judge has a duty to inquire into those alleged facts. Only if behaviour ‘such that the Petitioner cannot reasonably be expected to live with the Respondent’ is proved will the ground of irretrievable breakdown be satisfied. This test is subjective; not what does the ‘average man or woman’ think, but can Mrs Owen (here) reasonably be expected to live with Mr Owen in view of his (alleged) behaviour.
Despite hearing pages of evidence including an argument about a ‘silver tortoise necklace’ the first Judge found Mrs Owen had not proved her case. She appealed, but the Court of Appeal upheld the decision, stating her allegations were “merely examples of events in a marriage”. The court had sympathy for Mrs. Owen’s predicament and hoped her husband would re-consider. Until he does, the only option for Mrs Own is to wait up to five years, at which time her husband’s agreement would no longer be required.
This is surely intolerable for Mrs Owen and highlights why, in certain areas divorce law is in desperate need for modernisation. Surely this case will bring reform on ‘fault’ nearer, meaning a divorce will be reflective of the state of the relationship, even if not a ‘quickie’.
Berwins’ legal expert Sarah Smith is the only ‘Eminent Practitioner’ in Family Law in Yorkshire.