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11th May, 2018 by Justine Flack
Many family lawyers are calling for a change to the law to introduce no fault divorce. This has been brought into focus by the case of Owens. We are not currently at that stage and many petitions are based on unreasonable behaviour. Justine Flack considers the evidence which is required and demonstrates the need for caution if seeking proof.
In the case of the Owens, Mrs Owens had been denied a divorce because her husband’s unreasonable behaviour was not deemed as unreasonable enough. It was a case which renewed calls in the profession for no fault divorce; a proposition that I agree with. It remains to be seen whether parliament will grasp that particular nettle.
For the time being, unreasonable behaviour is one of the ways of demonstrating that a marriage has irretrievably broken down but what proof do you need to establish this? Mrs Owens has so far not convinced a court that she finds her husband’s behaviour unreasonable so should a Petitioner gather evidence against their spouse? This issue often arises where someone suspects that their spouse has formed a relationship with another party but do they want to establish proof to satisfy a legal need or an emotional one?
Not so long ago my Monday began with two telephone calls from clients. The first sought a meeting so that he could instruct me, the second I had met previously but he wanted to see me to update me. None of this seems unusual.
The first client told me that he was subject to criminal proceedings having fitted a tracking device to his wife’s car and had subsequently been charged with stalking. If found guilty he would lose his job and would have a criminal record.
The second client was on route to his GP having suffered a violent assault the day before from the man who he suspected was in a relationship with his wife. The man concerned hadn’t taken kindly to my client photographing him and the client’s wife whilst they were at a local pub.
In both cases, my clients were motivated by the need to know. Both wives had denied that anything was amiss but both husbands knew things weren’t adding up. They both also said that they wanted evidence.
But evidence for what purpose? If they were able to prove it, both men could have issued divorce proceedings based on adultery. However, neither had actual proof of adultery merely proof of the fact that their wives were in the presence of other men. To proceed on adultery the wives would have to admit the adulterous relationship.
Both men could, however, proceed on unreasonable behaviour because the petition can be drafted on the basis of suspicion. In both cases the clients described other events which were also suspicious – wife becoming possessive over her mobile telephone, being evasive about where she was going, becoming secretive, becoming distant and failing to show any affection towards them. Both men, therefore, suspected the involvement of a third party for a number of reasons.
All of the suspicions which my clients had would have been sufficient for a petition. Unreasonable behaviour does not require evidence in the form of photographs or the results of a tracking device. Both men, therefore, put themselves at risk in their quest to know.
There is a saying that if it doesn’t feel right, it probably isn’t; instinct is a good measure particularly when dealing with someone you have known for many years. It would be my advice to protect yourself first and foremost. Don’t risk your physical well-being or a criminal record particularly to obtain information which is not required.
Many types of behaviour are covered by unreasonable behaviour. Your solicitor can guide you if you discuss events with them. It is often the case that the truth comes out eventually even without using the risky strategies which my clients employed. Not only were they not required for the purposes of the Divorce Petition, and they had placed both men at risk, but their actions antagonised their wives making agreement on financial issues and regarding the children all the harder.