On 10 September 2021, Mr Justice Moor handed down the judgment Yorston & Ors, Re (Matrimonial Causes Act 1973: Improper Petitions) [2021] EWFC 80 concerning 28 petitions to the High Court. In each case, the allegations of unreasonable behaviour were absolutely identical.

The petitions were referred by Deputy District Judge McHardy, the judge who is, on a day-to-day basis, in charge of the Divorce Unit at Bury St Edmunds, to HH Judge Roberts, the lead judge for divorce, who in turn referred them to Mr Justice Moor. He observed:

“[2]. I accept that, in April 2022, the law is going to change when the Divorce, Dissolution and Separation Act 2020 comes into force. From then onwards, there will be “no-fault” divorce. Until then, however, the law of divorce as it operates in this country is absolutely clear. Whilst the sole ground for divorce is the irretrievable breakdown of the marriage [now Matrimonial Causes Act 1973 s1(1)], it has to be proved by establishing one of five facts [s1(2)]…I am concerned today with (b), which is colloquially referred to as “unreasonable behaviour.”

[4]. Unreasonable behaviour can, of course, be proved by a very wide range of possible factual situations, although I accept that, over the years, there has been a concerted effort by the legal profession to encourage petitioners to plead only what is strictly necessary to satisfy the requirements of the section. The need, however, to satisfy the requirements of the section was stressed in the Supreme Court in Owens v Owens [2018] UKSC 41…It may well have been that this case was the catalyst that led to the change in the law to be found in the 2020 Act but the law remains, as at today’s date, that the petitioner must prove his or her case.

[5]. Each case must, of necessity, be different. Different spouses behave in different ways. It is quite impossible for each of 28 respondents to have behaved in exactly the same way as the other 27.

[6]. In these twenty-eight cases that I am concerned with the particulars of behaviour were found to be absolutely identical in each petition, namely:-

“For about a year prior to the separation the respondent would become moody without justification and argumentative towards the petitioner. He/she would behave in this way on at least a couple of days every week, which would cause a lot of tension within the home thereby making the petitioner’s life very uncomfortable. During the same period the respondent would also often ignore the petitioner and decline to communicate with him. He/she would also behave in this way on about two days every week, which would also cause a lot of tension within the home and make the petitioner’s life very difficult. The respondent showed no interest in leading the life of a married woman/man for about a year before the separation. For example, he/she would go out socially on his/her own and basically exclude the petitioner from his/her life thereby making him/her feel very dejected.”

[7].  I make it absolutely clear that those particulars are exactly the sort of particulars that I would expect to see in a divorce petition and I would not have blinked an eyelid. If proved to be true, I am satisfied that they would be sufficient to found a decree of divorce on the basis of the law as it is at present. It is, however, quite impossible for all twenty-eight respondents to have behaved in exactly that way. I regret to have to conclude that, as a result, these petitions are improper.

[8]. All these twenty eight petitions were drafted by and filed on behalf of the twenty eight petitioners by iDivorces, although technically each petitioner was acting in person. I make no criticism of that. I accept that Mr Eastham, a director of iDivorces, has apologised to me profusely. He accepts that iDivorces used this standard wording. He tells me that they sent the wording to each petitioner and asked them if there was anything in there that was wrong, although it is tolerably clear that not one of the twenty eight made any amendments to the draft. I am, however, clear that this is not the correct way to proceed. Each petitioner has to put, in their respective petitions, their own particulars, which are true and which actually occurred. The respondent can then accept the petition, seek to amend the allegations, or to defend the divorce if he or she wishes to do so.

[9].  As all these particulars are absolutely identical and cannot, therefore, all be true in each of the twenty eight cases. If I needed to give an example, it would be to say that it would incredible if all twenty eight respondents ignored the twenty eight petitioners and declined to communicate with them on about two days per week. It follows that I have no alternative but to dismiss all twenty-eight of these divorce petitions. The petitioners will simply have to start again. I hope it will be possible for them to proceed relatively quickly.”

Comment

Mr Justice Moor indicated that he had indicated to Mr Eastham that had considered a reference to the Director of Public Prosecutions on the basis that this could potentially amount to the crime of perverting the course of justice [10]. However, he came to the conclusion that there would be insufficient public benefit in referring these cases to the Director of Public Prosecutions and it would be disproportionate to do so on this occasion; but, “if it was ever to happen again, I would have no hesitation in making a referral” [11]. He concluded:

“[12]. Although the cases were listed in open court, there was no attendance by the Press. I have therefore decided that I should place this judgment on the BAILII website to ensure that nobody else decides to do exactly the same as has happened in this particular case.

[13]. It follows that all twenty-eight divorce petitions as read out at the beginning of this hearing stand dismissed.”