A judge has refused a wife her divorce on the ground of unreasonable behaviour – and strengthened the case for no-fault divorce.
I could hardly believe a report that a judge had refused a wife her divorce on the ground of unreasonable behaviour, stating that the behaviour complained of was ‘only what one would expect in a marriage’, or words to that effect.
As family lawyers in the 1990s, we all suspected that the grounds given to us by our clients were in some cases either exaggerated or invented wholly or in part. We only knew what we were told.
The point is that this was a means to end a marriage that had ‘irretrievably broken down’. In our experience, it invariably had.
District judges tended to take a fairly indulgent view in most cases. Defended divorce became an extreme rarity.
I have to admit to unhappy history here. As a fledgling recorder, I found myself asked to try a defended divorce. Goodness knows how it got past the directions stage.
The husband was a well-known ‘barrack lawyer’ defending himself; the wife was represented. The wife had left the husband 18 months ago. The marriage was dead but the husband would not let go. Unfortunately, the wife’s solicitors had drafted a petition containing only one-line allegations. I should have seen a red light and adjourned for further and better particulars to be filed. Easy to be wise after the event.
Instead, I proceeded with the trial after asking the parties to retire and consider whether matters could be handled in a civilised manner to bring this marriage to an end.
The husband demurred. I heard the evidence – some drinking, abuse and general bad behaviour by the husband, sufficient one would have thought to justify a decree, which I granted.
Later, I heard the full horror of the denouement. The husband appealed; the wife was appointed counsel. Three eminent appeal court judges picked over and criticised every line of my judgment, even querying why a mere ‘recorder’ had heard the case rather than a circuit judge. ‘Justice was not done,’ they declared loudly.
They denied the wife a decree and ordered her – though legally aided – to pay £300 towards costs.
When word of this got out there was general disbelief. Our local district judges were appalled.
What sort of ivory tower were those judges living in? To shore up a dead marriage was a disaster and a great injustice to the wife.
The sooner we move to no-fault divorce the better.
John Greenwood, retired recorder, Chippenham
