It has been revealed that the widely reported case last March in which a wife was not granted a divorce from her husband because she could not demonstrate that his behaviour had been unreasonable will be decided by the Supreme Court.

Under English law, there are only five grounds under which divorce can be sought.

These are:

• adultery;
• desertion;
• separation for two years where the spouse consents;
• separation for five years without the spouse’s consent; or
• unreasonable behaviour.

In the case in point the first four criteria did not apply, and the wife therefore sought a divorce on the ground of her husband’s unreasonable behaviour. In such cases, the person seeking the divorce must show that the spouse ‘has behaved in such a way that [he or she] cannot reasonably be expected to live with [him or her]’.

The husband opposed the divorce application. Other than perhaps his refusal to accede to her request for a divorce, his behaviour was, in the view of the Court of Appeal, not sufficiently unreasonable to grant a divorce, despite it being clear that the marriage had broken down. The husband claims that the breakdown is not irretrievable and, since they have not yet been separated for five years, the termination of the marriage now would require that unreasonable behaviour be proved.

The wife’s evidence alluded to her husband prioritising work over family life, making her feel unappreciated because he had not provided her ‘with love, attention or affection and was not supporting of her role as a homemaker and mother’, their having arguments and his having embarrassed her by chastising her in front of others.

However, the Court of Appeal, noting that Parliament had not set the law to allow ‘divorce on demand’, concluded, in the words of Lady Justice Hallett ‘with no enthusiasm whatsoever’, that the marriage must, in the absence of the husband’s agreement, continue until the separation has lasted for five years.

The circumstances in this case are very unusual, although divorces that are fractious are not.