This week has seen the headline : Mum whose violent husband was jailed can’t get a divorce – because he says no, appear in the Daily Mirror. The same story is covered under the slightly less bold headline in the Metro : Abusive husband still controlling wife he put in hospital by refusing divorce.
But can it really be right that a violent ex can block a divorce in this way? Let’s look firstly at the facts as we are given them in the Mirror. It’s clear from the gruesome pictures that the wife was subjected to a really brutal attack, for which her husband was rightly convicted – and he is still serving his sentence of imprisonment. Good grounds you might think for a divorce.
The Mirror tell us that
Despite his shocking act of violence, Suzanne can’t get a divorce because he won’t agree to one.
She believes Jennison is still trying to control her from behind bars.
Suzanne sent him divorce papers to his jail cell, but he brazenly suggested the split might not be necessay. [sic]
There is further detail about what is going on throughout the article
She … says Jennison is refusing to sign the papers from his jail cell at HMP Manchester – more than 18 months after he was jailed. Instead he has suggested that perhaps divorce is not the answer….
“He referred to what he did to me as an ‘incident’ and he’s saying it doesn’t have to end in divorce.
Jennison has been able to contact Suzanne through the divorce courts – despite being the subject of a restraining order banning him from contact with his wife.
…“He’s said that if the courts resend them he will fill them in. That was June 11. I’ve chased this up several times. I know he will keep doing it – it’s control.
Suzanne has been trying since January to divorce Jennison, but says he is requesting a financial settlement.
“There are no children, no house and no finances – it should be a straightforward divorce,” she says.
…Suzanne has used a government website to try and obtain a divorce for a fee of £550.
…Suzanne has now been advised to get legal representation – which she can’t afford.
There are several things apparently going on here :
- he is not sending back the papers to allow things to progress
- he seems to be opposing the divorce itself
- he is asking for a financial settlement to be sorted out
- Suzanne doesn’t have a lawyer and is trying to sort things out herself online.
Let’s work backwards : why doesn’t Suzanne have a lawyer?
Legal aid
Suzanne is a victim of serious domestic abuse. She should be entitled to legal aid to help her with all this, subject to her means. Either Suzanne has an entitlement to legal aid which she doesn’t realise she has, or she has some income or capital that make her ineligible for legal aid. The article suggests that there is ‘no house and no finances’, but it might be that Suzanne is working and this tips her over the limit for legal aid.
If Suzanne were represented we anticipate that her lawyer would be telling her that none of this will stop her getting a divorce, and whilst her husband may be able to slow things down a bit, ultimately he won’t be able to stop her divorcing. They would be able to help her navigate the process and deal with any obstacles thrown up by her husband to minimise their impact.
Suzanne’s situation highlights the vulnerability of litigants in person trying to navigate the divorce process when there are any complicating features or problems along the way. The online process being referred to is one that the government has introduced specifically for those without a lawyer (you can see it here), so this is not a system that Suzanne is struggling with because its designed for lawyers. Lawyers on twitter have been able immediately to identify and suggest relatively simple steps Suzanne could take to get things moving, but unless Suzanne knows what to ask for she feels stuck.
Not sending back the papers and opposing the divorce itself
Lawyers had a few suggestions about this :
Jon Armstrong, responding to the Metro article, suggested applying for an order for personal or deemed service, so that she can move on and sort the divorce bit of things. :
And, says Jon, if he has already filed an acknowledgment of service (a form confirming you’ve received the divorce petition and saying whether or not you agree to a divorce – which it sounds like he might have done – and time has run out for him filing an answer (a document actually setting out why he oppose the divorce in detail) Suzanne can apply for decree nisi without his consent.
Jon also points out that even if he is really contesting the divorce (very rare but famously something that happened to Mrs Owens, in a case which went all the way to the Supreme Court), he is highly unlikely to succeed given the conviction, which is proof of his awful behaviour towards her.
Marilyn Stowe sensibly suggests an application for ‘deemed’ service (basically asking the court to accept that the husband has had the documents so they don’t need to be resent) :
David Burrows suggested that the idea an assault of this gravity could be written off as an ‘incident’ that didn’t provide grounds for a divorce was so ridiculous that Suzanne could perhaps try and strike out his defence.
Everyone above assumes that the petition is a ‘behaviour’ petition, i.e. that Suzanne is trying to get a divorce on the grounds that the relationship has irretrievably broken down as a result of his behaviour, which is so bad that it would be unreasonable to expect her to continue to live with him. Initially we thought the petition might have been issued on the basis of 2 years separation with consent (i.e. it doesn’t depend on his behaviour), but in fact the Metro article tells us that the assault took place in June 2017, and the petition was issued in January 2019, which was less than 2 years after the separation, so this couldn’t have worked. In any event, it appears the husband is refusing to give his consent to a divorce, so even if Suzanne had issued a petition in June on this basis it couldn’t succeed unless the husband cooperated. Suzanne’s other alternative under the current law is to wait for 5 years separation to elapse and then she won’t need to prove bad behaviour OR obtain his consent. However, given the conviction this would almost certainly be unnecessary, and would most certainly impose an unjustifiable burden and delay upon her.
What we aren’t clear about is how easy it is to make any of the applications above through the online process. Equally, if Suzanne’s petition had to exit the online (litigant in person only) system because she got a lawyer on board, its possible that in itself might cause some delays (there have been significant delays with divorces generally as a result of a recent re-organisation of the process, widely reported in the legal press).
What about financial settlement?
Any husband or wife who is getting divorced can ask the court to make orders sorting out their finances, even if sorting them out just means a court order saying nobody gets anything. The purpose of that sort of order is to provide finality, and it protects both parties from a later attempt to claim something.
Generally speaking the conduct (including abuse) of one spouse towards another during the marriage is not relevant to how financial matters are sorted out, though it can be taken into account if it would be unjust to ignore it. There are some examples of this happening, if behaviour has had a financial impact (for example it has left a victim with disabilities, a reduced income capacity or a greater housing need) the court could make an order to reflect the additional financial needs caused by the conduct. But if neither party has any real financial resources the proceedings should be relatively straightforward – and they need not hold up the divorce itself.
Suzanne should be able to ask for special measures to avoid having to come face to face with her husband at court (screens, video links etc), if indeed he was produced from prison for any hearing. We don’t know if the online process asks applicants about whether they need any special measures to be put in place.
Undoubtedly having to go through financial proceedings will be stressful and potentially traumatising for Suzanne, but it probably can’t be entirely avoided if her husband wants to force the issue.
Should the law be changed?
Lawyers and others have been campaigning for years, especially after the Owens case, for a reform to divorce law – so that someone wanting a divorce didn’t have to prove fault (bad behaviour) and to reduce the opportunities to contest a divorce. Before the recent prorogation and general election events, Parliament had a Bill under consideration that would have made these reforms – but that is now probably lost as a result of the prorogation. It may well be revived and pushed through at some point after the general election.
Conclusion
Of course, we can’t give legal advice through a blog post – like the other legal commentators above, we are simply commenting on what might be possible based on the information in the article. What Suzanne really needs is a lawyer to guide her through the process and get her out the other side as quickly as possible so she can get on with her life. If she can’t get legal aid she may be able to source some help through organisations like Rights of Women.
An item on Family Law Week recently suggests that online applications have a high attrition rate. The authors of that article, which has more than a whiff of advertorial about it, suggest that this may be in part because people enter into an online divorce process too lightly, and later decide not to bother (we paraphrase), but we wonder whether there are many people like Suzanne who are trying to sort things out themselves, and who just get stuck, unsure how to navigate problems as they arise, or how to get help to move forwards. That certainly seems to be the case for Suzanne.
The fact that women like Suzanne are left high and dry by the legal system is an important issue to report. Suzanne has been severely abused, has no legal aid and apparently has not found her way to other services and information that might be available to help her, nor has she been able to successfully navigate the Ministry of Justice’s whizzy online system. The practical reality, if not the intention, is that for women like Suzanne the divorce process is facilitating her re-traumatisation and perpetuating controlling behaviour even though her husband is behind bars and even though a restraining order is in place.
So we don’t criticise the newspapers for running stories like this. BUT… It is regrettable that the mainstream media would run articles like this without pointing out the availability of legal aid and giving the inaccurate impression that it is possible for a controlling and nasty ex to frustrate the divorce process, when actually – although he can continue to attempt to control or affect his wife through the process – he is only likely to succeed in stopping her breaking free if an ill informed, traumatised and exhausted wife gives up without fully appreciating her options. There is light at the end of the tunnel for Suzanne.
We hope that the Mirror paid Suzanne enough for her interview for her to pay for a decent lawyer, or that the observations of legal commentators will come to her attention so that she can go back and check if she is eligible for legal aid after all.
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