Getting a divorce is never easy, but when one partner doesn’t want to play ball it is almost impossible. The following case shows a flaw in the law and could herald a change to enable a no-fault divorce. The Supreme Court was recently put in the difficult position of refusing to give a woman a divorce because the law gave them no alternative.

The marriage itself lasted for nearly 40 years and the wife ultimately sought a divorce using Section 1(2)(b) of the Matrimonial Causes Act 1973. She listed 27 instances of her husbands’ alleged unreasonable behaviour including arguing and moodiness. The husband, however, did not see the marriage in the same way and as they had raised two children it had been successful.

A family judge dismissed the wife’s claim saying that the evidence she relied on was of incidents that were one-offs and she had embellished them in order to strengthen her case. The Court of Appeal agreed and also dismissed her petition. The result was that the couple had to remain married.

The Supreme Court heard the wife’s challenge to the Appeal Courts’ decision and they acknowledged that contested divorce petitions were very unusual and in the normal course of events, petitions using section 12 were quick and uncomplicated. The judge in the original hearing had fully considered the available evidence and his decision was based on the impact on the wife of her husband’s behaviour and whether it was reasonable to expect the couple to remain together. His decision was correct in law and the Court of Appeal was right in dismissing her petition.

The Court did, however, note that while the decision was right in law, the evidence was scant and isolated incidents were cited even though the wife had noted that her husband was authoritarian. The Court of Appeal had dismissed her petition out of hand and this has led to a situation where she has to remain married. The Supreme Court has suggested that Parliament should reconsider the law to avoid a repeat of this unusual and unfortunate situation.

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