• March 29, 2024
 ‘Life isn’t fair’ so we tell our children

Divorce and child custody scissors cutting family apart

‘Life isn’t fair’ so we tell our children

Is it really too easy to get a divorce in England and Wales?

Mr Ayeh-Kumi seems to think so, as it has recently been reported that he has launched legal action in the High Court to overturn England’s ‘easy’ divorce laws, saying his ex-wife breached his human rights by securing a divorce on grounds that, for example, he worked too much and did not go on family holiday’s with her and the two children. He asserts that the use of the term ‘unreasonable behaviour’ as grounds for divorce is too vague, as it is not defined in law, thereby making separation too easy. Mr Ayeh-Kumi may not be alone in holding this view – and it is noted that his endeavours are supported by ‘cloud funding’ – and he may genuinely believe that the present system is not fair to those being divorced against their will.

However, it is difficult to seek how Mr Ayeh-Kumi can possibly succeed in his application or his arguments that the divorce process breaches the Rule of Law, the Human Rights Act and the European Convention on Human Rights.

This is not the first time that the court has been required to consider the relevant provision contained in s.1(2)(b) of the Matrimonial Causes Act 1973. In May 2018 the Supreme Court was faced with a contested divorce involving Mr and Mrs Owens. There Mr Owens was attempting to prevent Mrs Owens from obtaining a divorce, arguing that the allegations of behaviour relied upon were simply too weak. To the consternation of many he was successful and this decision doubtless contributed to the passing of the Divorce, Dissolution & Separation Act – another target of the latest application.

In Owens v Owens, Lady Hale stated:-

“I have found this a very troubling case. It is not for us to change the law laid down by parliament – our role is only to interpret and apply the law that parliament has given us.”
It is possible that all Mr Ayeh-Kumi is seeking is a ‘re-interpretation’ – but his full-blooded attack feels more fundamental. It is reported that what he wants is for the bar for a unilateral divorce to be set at a high level, namely domestic abuse or infidelity.

Lord Wilson gave the leading judgment in Owens. He referred to six earlier authorities in the lower courts when consideration had been given to s.1(2)(b). He stressed that “unreasonable behaviour” had always been a lawyers shorthand description for that ground of divorce, but it was wrong. The basis of s.1(2)(b) was not “unreasonable behaviour” but behaving in such a way that the petitioner “cannot reasonably be expected to live with the respondent”. It is a subtle but important difference.

In the past the ‘test’ has been put thus:-

“Would any right-thinking person come to the conclusion that the husband has behaved in such a way that the wife cannot reasonably be expected to live with him, taking into account the whole of the circumstances and characters and personalities of the parties?”

Undoubtedly over the years, the move has been towards the reliance on more anodyne and less antagonistic allegations to demonstrate that the marriage has irretrievably broken down – but that does not mean that it is just a ‘tick box’ exercise. There still needs to be some substance to the allegations to warrant a divorce.

A decision in Mr Ayeh-Kumi’s favour would potentially turn the clock back to the days when the allegations relied upon frequently caused offence and divorce petitions were often defended (at significant expense) for fear that the petition would become a stick to beat the respondent with in arguments over children or money.

The Divorce, Dissolution & Separation Act was designed to ‘end the blame game’ and herald a better and more civilised way for couples in broken marriages to move forward. Some people will always find the concept of a unilateral divorce save in exceptional circumstances offensive, but a process which requires the court to carefully investigate the reason for the breakdown and only award a divorce if a stringent test is passed is likely to do more harm than good. It could lock people in loveless marriages and put the financially weaker spouse in a disadvantageous position.

Surely it is better to support people at a difficult time in their lives than to require them to criticise each other?

John Darnton, Consultant at BDB Pitmans

John Darnton is a Consultant at BDB Pitmans.

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