Can my ex-partner refuse to sign the divorce petition? Can they prevent the divorce from taking place? (3 March 2017)

In a recent case, widely publicised in the national press, Tini Owens attempted to divorce her husband and has been told by the court that she cannot.

In order to divorce in England and Wales a petitioner has to prove one of five facts:

1) There has been adultery in the relationship.
2) That the respondent has acted unreasonably.
3) The parties have lived separately for two years and the respondent consents to the divorce.
4) The parties have lived apart for five years regardless of the respondent’s consent.
5) The respondent deserted the petitioner.

In this case, Mrs Owens sought to rely upon the “catch-all” clause that the respondent Mr Owens had acted unreasonably. Mrs Owens put forward that she felt “unloved” by Mr Owens. The Court rejected a divorce on this basis and told her that she would have to wait for five years before she was allowed to divorce as Mr Owens objected to it.

It is not uncommon for a petitioner to want an amicable separation and divorce. Unfortunately, on occasion the respondent wishes for the relationship to continue, despite the other parties wishes. As a petitioner cannot proceed on the basis of no fault without waiting for facts 3-5 of the above list to occur, there unfortunately has to be an allegation made against the other party.

On the basis of unreasonable behaviour, the petitioner cannot just rely upon their unreasonable behaviour; allegations have to be specifically made against the respondent. Often the allegations are anodyne, but they must be at an intolerable level that a judge would accept.

The case of Mr and Mrs Owens marks a shift in the courts’ approach as frequently parties state that they no longer feel any love or affection from the other person. The allegations of unreasonable behaviour were simply not strong enough in this matter. Unreasonable behaviour is a subjective matter and therefore whilst one person may find the behaviour tolerable and even normal, another person may find that behaviour unbearable and wish to divorce as a result.

This case does not mark a massive change in the way that the courts are dealing with divorces and divorcing couples need not worry. Providing the allegations of unreasonable behaviour are robust, then the court should allow the divorce to proceed. With approximately 42% of marriages ending in divorce the court would have great difficulty if there was to be a surge in defended forces.

Providing there is clear unreasonable behaviour, the papers are drafted correctly and served upon the respondent in the appropriate manner, then it continues to remain very difficult to defend a divorce. When one party feels that the marriage is over then it seems sensible for the court to allow the divorce to proceed.

Paul Nuttal, the author, is a Solicitor in the Duncan Lewis Family & Childcare Department. He regularly deals with individuals going through divorce who have to simultaneously arrange their financial separation and/or child arrangements. He regularly represents clients who are struggling to come to an agreement over child contact and residence.

Headed by 18 Director Solicitors, and boasting over 40 Law Society Family & Childcare Panel Specialists, the Duncan Lewis Family & Childcare department are specialists in all aspects of family and private/public children law matters from offices across London and throughout the UK. Recognised by Legal 500 2016 as a leading family practice, the team holds a niche practice in representing victims of domestic abuse and is significantly experienced in complex financial matrimonial matters (ancillary relief) relating to the breakdown of a marriage/relationship. With a broad practice representing parents, family members and children through their children’s guardian in all children public law proceedings and conducting cases on behalf of the official solicitor, the Duncan Lewis’ Family & Childcare team are also specialists in high profile international child abduction cases, with an extensive practice in inherent jurisdiction/forum disputes, international relocation cases and wardship proceedings for the return of children. Duncan Lewis is one of only a small number of firms throughout the UK that are on the Lord Chancellor’s International Child Abduction & Contact Panel (ICACU), which is responsible for administering Hague Convention (Child Abduction) proceedings work in England. Since 2013, Duncan Lewis has an established Islamic & Sharia Law team which specialises in Islamic Divorce, Islamic Financial Settlement & Mahr Claims under English Law.