A rare divorce case which reached the Court of Appeal this month has highlighted the issues with grounds for divorce under the law as it stands in England and Wales.
As the law stands, there is no such thing as “irreconcilable differences” as is often used in America, and unless a couple are willing to wait until they have been separated for 2 years, the only basis for a divorce is adultery or unreasonable behaviour (fault based divorces). This can lead to arguments over which of the parties to the marriage was at fault and whose conduct should be used as the grounds for the divorce.
Although the grounds for the divorce, and who is put as the Respondent (i.e. technically the one at fault) can cause heated debate, most couples manage to agree between them how the divorce should proceed, in order to save the considerable costs and delay of a contested divorce.
The grounds for the divorce do not automatically affect the division of financial assets or the arrangements for the children and so there is often little to be gained by engaging in litigation about who caused the divorce to fail.
Defending or contesting a divorce is still very rare, not least because it’s a very expensive and unpleasant way to get to the same point, a divorce, as an uncontested divorce which is almost always a paper procedure.
There are however still some cases where for matters of principle, religion other cultural reasons, or personal issues, the grounds for divorce is a very important issue and as such, is worth contesting.
A Court of Appeal case last week centred on whether the marriage had ended due to a string of same-sex affairs by the wife “whilst working as a prostitute” (as alleged by the husband), or due to the “violent, controlling and bulling” of the husband (as alleged by the wife).
The point of law before the Court of Appeal was technically about what evidence should be released to the parties to assist them in their quest to prove their respective allegations and defend the divorce brought by the other.
However the case highlights that by insisting upon someone being cited as at fault, these deeply unpleasant and personal cases are encouraged by the law, which would otherwise often render them unnecessary if a no-fault option were available.
It is not clear how long this divorce case has already been going on, nor what the costs of the parties are to date on the case, but what is clear is that the litigation deals with sensitive and stressful issues and will still ultimately end up with the same effect, the couple being divorced. It therefore serves as a reminder of how complicated things can get.
Divorce can be a straightforward process and can be done amicably if couples go about it the right way. This reduces the stress, delay and cost of the divorce.
It's worth considering the various options for divorce carefully and deciding which one is right for you. An experienced Divorce Solicitor can help advise not only on how to get a divorce, but also how to get one in as simple and straightforward a way as possible, and can therefore be money well spent.
Although emotions are often running high when a divorce petition is issued, it’s worth knowing that a careful and considered approach can save an awful lot more heartache being suffered, such as in this recent case.
Anyone considering getting a divorce can speak to a Family Lawyer who specialises in both simple and complex divorce cases, or get a copy of our guide book to Marriage, Divorce, Children, Separation and The Legal System called Family Law Made Simple.
Cara Nuttall is a Senior Family and Divorce Solicitor at Slater and Gordon Lawyers in Manchester.
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