In this recently reported case the husband, Peter Savva, appealed the grant of the “Decree Nisi”, which had been granted – the Court having considered matters and judged that there was an entitlement to the Divorce on the grounds put forward by the wife, who had been the one to petition.
Mr Savva’s position was, whilst accepting that the marriage had temporarily broken down, that his wife had suffered some sort of mental breakdown or was confused or, in the alternative, that she was being unduly influenced by her solicitors, her mother and others and that the marriage had not permanently broken down.
Mr Savva even went as far as to say that his wife lacked the capacity to instruct her solicitors and asked the Court to order psychiatric testing.
Lady Justice Black rejected the arguments put forward by the husband and said that Mrs Savva stuck her as being “upright, honest and, not surprisingly, fed up with all that has been going on”. Lady Justice Black confirmed that in her view the husband was finding “all of this very difficult” and was struggling and “reaches out for any excuse other than the truth”.
The Court endorsed an earlier judgement in the case that the matter was “very sad” and I would certainly second that.
I would say that the lengths to which Mr Savva went are unusual – I expect that there are a significant number of people who are less than accepting that a divorce is the right course of action or even shocked that their spouse wants one but not everyone ends up in the Court of Appeal!
This case does, however, highlight, the difficulty that there can be when one party doesn’t necessarily want the Divorce to go ahead or considers that there hasn’t been an irretrievable breakdown of the marriage.
In England and Wales the only ground for divorce is that there has been an irretrievable breakdown of the marriage and this must then be based on one of several “facts”.
A divorce may be progressed without the other party’s consent or acceptance, for example, if the person petitioning considers the other’s behaviour to have been unreasonable, for which no proof or admittance of the behaviour is necessary. This is one of the most common facts upon which petitions are issued and means that a Divorce petition can be issued immediately upon separation – allowing the other party little time to get used to the idea or reach any level of acceptance.
Mr Savva has indicated his intention to seek judicial review of the process of divorce in England and Wales and considered that Mrs Savva should have been made to go through a“cooling off” period before commencing the divorce proceedings.
I do not agree that in all circumstances this is appropriate – for example when divorce proceedings are needed urgently because there is some pressing issue as regards the marital finances but there are several countries around the world whose procedures encompass some waiting time.
In Sweden, couples can file for divorce together or one party can file alone. If they have children under 16 living at home or one party does not wish to get divorced there is a required contemplation period of 6 to 12 months.
In Malta, who only had legislation introducing divorce in October 2011, the parties must have been separated for 4 years from the last 5 and there must be sufficient arrangements as regards maintenance. The requirement of separation for 4 out of the preceding 5 years is the same in the Republic of Ireland.
In the U.S, where no-fault divorces are common, most states still require a 1-2 year period of separation before proceedings can be commenced.
The reality is, despite these different procedures, that if one party wishes to separate, there is nothing that the other party can do – an obliged period of separation before divorce at least provides time for the party being left to come to some level of acceptance but it does also prevent both sides from moving on.
Far better, in my view, for parties to speak with each other before one takes action – not necessarily to achieve any reconciliation (although if that is a possibility divorce should be furthest from anyone’s mind) – but to discuss their respective feelings and needs so that the process, as administrative as it may be, can be approached on a timescale (ideally) appropriate to both sides.
Leaving aside cases where there is domestic violence (when some thought needs to be given to the timing and arrangements for any such discussion) the first thing that a spouse knows about divorce should not be receiving the papers through the post, no matter how uncomfortable that discussion is going to be.
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