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There has been a wealth of articles – everywhere from newspapers to academic journals – in recent years which suggest the divorce process in England and Wales should be simplified and made less adversarial. 
There has be a significant drive to reduce the emotional toll the divorce process takes on participants and their families (including, crucially, the knock-on effect it can have on children).  This has culminated in the passing of new law (which is not yet in use) to introduce a system of ‘no fault’ divorce.

However, an application has been made to the High Court to challenge current divorce laws, saying the ease with which a wife was able to obtain a divorce against her husband constituted a breach of his human rights. 

Behaviour as a basis for divorce

Charles Ayeh-Kumi, a father of two from Hampshire, is objecting to the fact his wife was able to divorce him in 2018 on the basis of his behaviour.  Often incorrectly referred to in the media as ‘unreasonable’ behaviour, this basis for a divorce has a long history of controversy. 

Prior to 1858, divorce was a church matter and essentially had one single type of conduct on which it could be justified: adultery.  A move into the secular realm continued to allow divorce on the basis of adultery only.  This changed in 1923 when Parliament introduced a new fact on which divorce could be based: behaviour, or as it was largely referred to then, cruelty.  From that point onwards, the conduct of a spouse other than engaging in an extra-marital affair could be relied upon to obtain a divorce.  Each of these changes, from religious process to secular to behaviour-based, represented a quantum leap forward and was met with opposition from various quarters, largely saying that divorce was becoming ‘too easy’.

As such, Mr Ayeh-Kumi represents the latest in a long-line of those objecting to the process involved in divorce, rather than divorce in itself. 

Challenges to the current process

Although the contents of a divorce petition are almost always kept private, Mr Ayeh-Kumi is pursuing his case in the civil courts and the contents of the petition against him by his wife have been made public.  His former wife claimed his lack of work life balance and reluctance to holiday with her was behaviour showing the irretrievable breakdown of the marriage. 

Mr Ayeh-Kumi says the lack of definition for what constitutes behaviour justifying a divorce makes separation easier than it should be and he is also seeking the repeal of the recently introduced ‘no fault’ divorce legislation.  He claims the ease with which one party can obtain a divorce based on behaviour is a breach of human rights.  Instead he seeks a clear definition of behaviour and the opportunity for joint applications for divorce.  This latter aspect of his case is interesting in that joint applications for divorce is something for which the ‘no fault’ divorce movement has strongly lobbied for some time and is due to be introduced.  After all, if a couple have grown apart but are in agreement about divorcing, why not let them apply jointly? 

Could the challenge succeed?

The short answer is that we do not know at this stage as the matter is still to be heard in full.  But it will not be an easy task in any case.  The most recent significant court challenge to divorce law in 2018 took the issue all the way to the Supreme Court. In the case of Owens v Owens, the husband felt the behaviour cited in the petition was not sufficient to show the marriage had irretrievably broken down.  The test to be applied was confirmed by the Court as a three stage one: did the behaviour take place, what was the effect of that behaviour and did the effect make it unreasonable to expect the couple to continue in the marriage?  All three are to be passed before the divorce can be granted.  It was also confirmed this is a subjective test dealing with context of the marriage in question.  This would suggest that Mr Ayeh-Kumi’s application, which seeks to treat all marriages as the same and apply a common standard of behaviour, could fail. 

Is a set of criteria for behaviour viable?

It is not hard to have sympathy for Mr Ayeh-Kumi’s plight.  Inevitably there are many people each year who feel their life has been fundamentally altered by a divorce process which they feel has not been properly applied nor sufficient behaviour on their part made out.  However, a list of behaviours regarded as sufficiently ‘unreasonable’ to justify divorce is not only completely misguided as even under the current law the behaviour does not need to be unreasonable, but also unlikely to be workable in a society where each individual, and each marriage, will be different from the others.  What is entirely acceptable in the context of one marriage, or even most marriages, is going to be wholly unacceptable in another. 

Additionally, as time progresses, society changes. What would be regarded as quite typical behaviour within a marriage now may have been thoroughly shocking to large sections of society when behaviour was introduced as a justification for divorce in the 1920s.  Is it a good use of Parliament’s time and the public money that entails to produce a definitive list of what constitutes ‘unreasonable’ behaviour from and to update it regularly?  Many would argue not.  And what of personal differences that could make the behaviour acceptable to one party within a marriage and utterly unbearable to another? 

The current law generally requires the party relying on behaviour to justify the divorce to state three to five examples of that behaviour and the effect it has had upon them.  The other party has a chance to object and, if they wish, defend the divorce before the information is considered by a trained and highly experienced District Judge.  This can provide a fail-safe against flimsy and ill-founded petitions.  The Owens case also illustrates how, albeit in a very extreme way, the process and the decision of a court to grant divorce can be challenged and the decision undone.

It remains to be seen whether Mr Ayeh-Kumi’s case will be successful in the High Court but it will certainly be fascinating to see how the Court deals with this latest challenge to the divorce process.

Megan Bennie
The International Family Law Group LLP
© December 2020