On Valentine’s Day 2017 the Court of Appeal began hearing an appeal following the refusal of a court to grant a wife a Decree of Divorce, even though the court found that the wife could not “go on living with the husband”. She had failed to prove her husband’s unreasonable behaviour.
The law in relation to divorce was drafted some years ago and is based on irretrievable breakdown of marriage proved by one of five facts, namely:
- Unreasonable behaviour
- Two years’ separation with consent
- Five years’ separation
The couple married in January 1978 and separated after 37 years of marriage. The wife’s petition, that was filed three months after the couple separated, stated that her marriage had broken down irretrievably and that her husband had behaved in such a way that she could not be reasonably expected to live with him. The husband filed his Acknowledgement of Service two months later, stating that he intended to defend the case and denying that the marriage had irretrievably broken down.
When the matter came for hearing, the husband stated that the criticisms made by his wife were “very much the stuff of everyday married life”. However, the wife argued that the effects upon her had been to “wear her down”. She said she had been unhappy and could no longer continue living with her husband. At the first instance hearing before the Central Family Court, the petition was refused on the basis that the wife’s allegations were “at best flimsy”. The wife appealed but the appeal was dismissed. Although the matter is likely to proceed to the Supreme Court, the parties remain married, in spite of there having been a clear breakdown in the marriage.
This case highlights how outdated the divorce law is in this current day and age. Although it is very unusual for a Divorce Petition to be defended and even less so for a divorce to be refused, the case demonstrates that this remains possible and that divorce is not simply an administrative process. The case leaves family practitioners in a difficult position. On the one hand, we wish to ensure that we do not encourage the drafting of particulars which could prove inflammatory (and ensure that we comply with the Resolution Protocol). On the other, we need to ensure that the particulars are sufficiently robust to satisfy the court that the marriage has irretrievably broken down. Many practitioners are now calling for the current law to be changed so that, when a marriage is over, there is no need for blame on either part. Indeed, family lawyers have been campaigning for no-fault divorce for many years. It is clear that with the rise of non-adversarial approaches to family law, such as mediation, a change in the law is very much needed, to ensure that couples such as in this case are not locked in a loveless marriage, or indeed a legal battle.
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