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10 December 2018

Contested divorces – how bad can it get?

Fully contested divorces are thankfully rare, and for good reason. Her Honour Judge Lynn Roberts recently dealt with a fully defended divorce in Ipswich and her judgment dated 5 November 2018 explains just how awful they can be.

A written judgment can rarely detail all of the evidence placed before the court. The circumstances of this case were somewhat extreme (described by the judge as ‘an extraordinary case’) but the situation was not unusual in that it seemed to be accepted by both husband and wife that the marriage had irretrievably broken down and the argument was over the reason for the breakdown. Who should get the divorce? Sadly, as the law presently stands, it is not enough to demonstrate that the marriage has irretrievably broken down. The person seeking the divorce has also got to prove one of the five ‘Facts’. In this case the wife issued a petition alleging adultery on the part of the husband and he subsequently issued a divorce application alleging that the wife had behaved in such a manner that he could not reasonably be expected to live with her.

The judgment makes it clear that the judge found the wife to be an honest and truthful witness but she was far less complimentary about the husband.

The judge was particularly critical of the manner in which the husband had conducted the proceedings. She could not really understand how things had ended up with a contested hearing heard over three days with numerous witnesses including family members who were subjected to cross-examination by the husband.

The judge stated:

‘Two things in particular puzzled me when I read the papers in this case. Why was Mr H contesting the divorce proceedings when he agreed that the marriage was over and accepted that he had been sleeping with his wife’s best friend for something over twenty-two years? Even if Mr H considered that he had a technical defence to her petition, why would he be so determined that the divorce had to be on his terms? Secondly, why did Mr H, and indeed Ms Y, blame Ms W for the destruction of their family lives and attribute this to what they term Ms W’s lie rather than to their affair and all the deception of so many people that such an affair involves? I am still unclear as to the explanations’.

Having heard substantial evidence the judge decided that the wife was entitled to her divorce. As she also said:

‘Mr H’s whole case has indeed been completely futile, a huge waste of money, a tragic destruction of family relationships, and all, in my opinion, to satisfy Mr H’s own vanity and need to be in control and for the other reasons I have suggested earlier. All he had to do was to not contest a divorce, a divorce he wanted, as virtually everybody else in the country does, and this couple would have had their decree nisi last year, the various relationships would, in all likelihood, have been well on the way to healing by now and the money saved for the family’.

Not only therefore did Mr H fail in his attempt to get a divorce on his own terms but there were two stings in the tail of the judgment. Firstly, the judge ordered that Mr H should pay Ms W’s costs of prosecuting her petition and defending his petition. These costs should be paid on an indemnity basis because of the ‘totally unnecessary proceedings that have taken place, a huge amount of costs which have been made much more expensive than they needed to be because of decisions taken by Mr H’. Secondly, in his evidence Mr H had stated that he had not told the police responsible for firearms and shotguns about his diagnosis of post-concussion syndrome. The judge’s response to this admission was to indicate that she would be writing to Essex police about his certificates as he had admitted to committing offences under Section 26 and/or 29 of the Firearms Act 1968.

Whilst the circumstances of this reported case may be at the extreme end of the spectrum, it is certainly not uncommon for a marriage to break down in circumstances where each party feels aggrieved and both of them may have grounds for divorce. It may be a case of ‘six of one and half a dozen of the other’. Possibly (and at long last following the Supreme Court decision in Owens and Owens) we may have legislation in the near future which provides for ‘no fault’ divorce. In the meantime, hopefully clients can be helped to see the benefit of trying to end their failed marriage as painlessly as possible without getting drawn into an expensive quarrel over the reason for the breakdown. It will be noted that in the present case Mr H was unrepresented by the time the dispute got to trial. Initially it seems he had had the benefit of legal advice but that had not prevented the proceedings from becoming contested. The judge considered that Mr H displayed attitudes that were common forty years ago. That may be so but when emotions are still raw it is easy for people to gravitate towards conflict for a whole host of reasons. Even when, as is normally the case, a contested hearing can be avoided, it is very easy for separating couples to expend enormous emotional energy, and money on legal fees, arguing about the particular grounds for the divorce. It is only in an extremely rare case that the basis for the divorce has any impact on any financial outcome but even so the fact that the ground for the divorce is one of fault often creates hurt and friction which can be difficult to contain.

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