Can the Court Refuse a Divorce?

Jul 26, 2018   ·   5 minute read
Red-haired beautiful woman listens attentively to man looking at divorce attorney. Attorney in business suit is sitting at office table, listening to discussion of divorcing couple.

We are always reading in the press about celebrities getting ‘quickie divorces’. Today’s news that a woman whose divorce was refused by the Supreme Court ‘ will come as a surprise to many who assume that in the 21st century if you want to get divorced you can go ahead and do so. Read the full news story.

As divorce solicitors, obtaining divorces on a daily basis we know that getting divorced isn’t plain sailing.

The grounds for divorce

Why did the Supreme Court refuse 68 year old Tini Owen’s request for a Decree Nisi of divorce from her husband? The 3 Judges agreed that the marriage had broken down, with Mr and Mrs Owen living in separate houses and there being no prospect of a reconciliation between the couple. However under current divorce law a petitioner or divorce solicitors asking the Court for a divorce not only have to establish that the marriage has broken down but also that the failure of the marriage is down to one of five specified reasons:

• Adultery;
• Unreasonable behaviour;
• Separation for 2 years with your husband or wife’s agreement to the divorce;
• Desertion;
• Separation for 5 years – you then don’t need your husband or wife’s consent to the divorce.

Can you get divorced?

The Supreme Court Judges have decided Mrs Owens can’t get a divorce based on her current divorce petition. Why? Well although it was agreed that the Owen marriage had broken down the Court wasn’t satisfied that Mrs Owen had established that Mr Owen had behaved unreasonably. As Mr Owen won’t agree to a divorce based on 2 years separation that means Mrs Owen will need to wait until 2020, when she will have been separated 5 years, to start fresh divorce proceedings against Mr Owen.Ultimately Mrs Owen will get her divorce but if divorce solicitors are asked then the answer at the moment to the question ‘’can you get divorced’’ is not necessarily and not yet.

What do divorce solicitors and family Courts consider to be unreasonable behaviour?

Mrs Owen didn’t get her divorce because the Supreme Court wasn’t satisfied that Mr Owen had behaved unreasonably. Usually when a husband or wife starts divorce proceedings on the basis of unreasonable behaviour their spouse doesn’t challenge the reasons stated in the divorce proceedings. That is because the spouse sees the divorce paperwork as a means to a common goal of a divorce and a financial settlement. In Mrs Owen’s case her husband objected to the divorce and said he hadn’t behaved unreasonably.

It has long been established by divorce Courts that unreasonable behaviour isn’t falling out of love or drifting apart from a spouse. There has to be some behaviour on the part of the spouse that is so unreasonable a divorce is justified.

Lots of people assume unreasonable behaviour has to be pretty extreme such as an assault but divorce solicitors know that unreasonable behaviour comes in many different forms such as:
• Financially controlling your husband or wife;
• Belittling or demeaning your spouse;
• Refusing to communicate or socialise with your husband or wife;
• Failing to support your spouse, this could be emotionally, financially or in bringing up the children.

There are numerous other examples of unreasonable behaviour. It is important to get legal advice from divorce solicitors before you start divorce proceedings. Why? Well it is important to detail enough allegations of unreasonable behaviour to make sure that the Court is satisfied that a spouse has behaved unreasonably but, on the other hand, the divorce petition shouldn’t be too extreme. If the allegations are too strong it may make it a lot harder to reach a parenting agreement and a financial settlement with your husband or wife.

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Will the allegations in the divorce proceedings affect the childcare arrangements or financial settlement?

This question is often asked of divorce solicitors. It is very understandable as people fear that if they accept the unreasonable behaviour allegations in a divorce petition and don’t contest the divorce that they will end up not seeing the children or the Court will take into account the unreasonable behaviour allegations when deciding how the assets and property are split up.

That is why it is important to get advice from divorce solicitors before you start divorce proceedings or agree to a divorce. Divorce solicitors can agree that although you are not contesting the divorce petition as you both want a divorce that if the allegations in the divorce petition are raised in any future financial or children Court proceedings you can contest and challenge what is said about you. In other words agreeing to the divorce petition is a means to an end whilst preserving your legal rights.

For help from expert divorce solicitors on any aspect of divorce proceedings or for information on financial claims on divorce, contact us.