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Supreme Court says no to divorce based on weak unreasonable behaviour

Sydney Mitchell LLP

The Supreme Court judges' decision to prevent a wife from divorcing her husband, which was made 'without enthusiasm', is expected to lead to calls for a rapid change in the law.

The case arose after a wife's application for a divorce was opposed by her husband on the basis that the marriage had not irretrievably broken down.

Slightly more than 1 in 1,000 divorce applications lead to a contested hearing on that ground.

Under the law, there is an automatic right to a divorce only under a limited number of circumstances.

These are:

*Divorce without consent can take place where the couple have lived apart for five years;

*A couple who have lived apart for two years can divorce with the consent of both spouses; or

*A couple can divorce where there is an irretrievable breakdown in the relationship.

This can be evidenced in several ways, including adultery, but the essence is that the behaviour of the spouse is such that the other spouse cannot reasonably be expected to live with him or her.

In this instance, the husband's behaviour, though far short of what might be expected in a normal loving relationship, was not so egregious as to meet that test.

In this case, the husband believed that a reconciliation was possible, and the couple had not lived apart for five years.

When a petition for divorce is made on the ground of unreasonable behaviour, the normal practice is for such behaviour to be dealt with very briefly, as a detailed exposition can increase the ill-feeling at what is always a difficult time and that in turn can make other aspects (such as the residence arrangements for children and the financial arrangements) more difficult to negotiate.

The wife's evidence in respect of her husband's behaviour was therefore limited.

For example, in regard to one aspect (that he belittled her in front of others) she called no witnesses to the first court hearing to support her claim.

The appeal to the Supreme Court dealt in essence not with the husband's behaviour as such, but the effect it had on his wife.

Our experts in family law are experienced in dealing with all aspects, contentious or not, of family breakdown.