W v H (Contested Divorce) [2022] EWFC 1502 November 2022

Published: 16/01/2023 09:00


HHJ Greensmith. H defended W’s petition for divorce. The parties were 45. H was a doctor and W a social worker. They married in Australia in 2014 and separated in 2017. They have three children.

This was not H’s first round of contested divorce/financial remedy proceedings, his divorce from his first wife being the cause of three Court of Appeal decisions.

Preliminary matters, including the relevance of H’s autism diagnosis and W’s categorisation as a Vulnerable Witness, were dealt with at a ground rules hearing. The judge emphasised the need for the court always to be mindful of the need to consider an assessment for an intermediary, even when not obviously and immediately apparent.

W’s original petition made general allegations of controlling behaviour. Her Amended Petition included lengthy but unspecific and disorderly allegations of verbal abuse and more of controlling behaviour. Both petitions and H’s response are recorded verbatim in the judgment.

H argued he and W had never validly been married. The judge rejected that argument and gave an extempore judgment. H’s appeal of this decision was found to be totally without merit.

Having put the parties’ pre-prepared questions to the other party in cross-examination, the judge found W’s written evidence to be ‘exaggerated’, ‘overstated’ and not consistent with, or ‘undermined’ by, her oral evidence, ‘to the point where she presented a false picture in an attempt to further present H as controlling’. Her evidence was ‘largely ineffectual’, ‘peppered with inconsistencies and contradictions of her own written evidence’ and ‘significantly lack[ed] reliability’. She was an ‘unconvincing witness’. H was a ‘credible and reliable witness’. His autism was found ‘likely to have had a significant impact upon the manner he has behaved throughout the marriage’. Once aware of H’s diagnosis, it was appropriate to expect W to make such allowances or adjustments as are reasonable. Rather, W ‘sought to capitalise upon H’s autistic traits as evidence of behaviour to attempt to satisfy the test’.

The legal framework relevant to the court’s decision has authoritatively been set out in Owens v Owens [2018] UKSC 41. Considering both objective and subjective elements of the test, the judge was not satisfied that H had behaved in such a way that W could not reasonably be expected to live with him.

In respect of costs, H’s contest of the validity of the marriage and his offer to settle (which was found to amount to ‘an attempt further to engage the parties in protracted and expensive litigation’ and was ‘more likely than not an attempt … to place inappropriate pressure on W’) were relevant conduct sufficient to rebut the presumption that costs follow the event (Gojkovic v Gojkovic (No 2) [1991] 2 FLR 233 and Solomon v Solomon & Ors (Rev 1) [2013] EWCA Civ 1095).

W’s Amended Petition was dismissed, with no order as to costs.

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