Anyone wanting a divorce should be able to obtain one without placing blame on the other party, otherwise known as a “no fault” divorce, providing they have been separated for a continuous period of at least two years and their spouse consents.
If they have been separated less than two years an individual would have to rely on the other party’s adultery or their unreasonable behaviour, bringing into the divorce an element of blame or fault of the other party.
As family lawyers, our aim is to formally bring any marriage to an end with as little hostility as possible, recognising the reason cited for divorce rarely affects the extent of financial arrangements, which are based on different criteria including need and available resources.
If there are arguments in relation to the divorce itself, these can offer extend to and undermine discussions in relation to other issues, such as financial or child arrangements and therefore, the more amicable parties’ are from the outset can assist in progressing other matters. Therefore, when drafting a divorce petition based on unreasonable behaviour we may seek to phrase any allegations in such a way to make them more acceptable to the other party, with a view to the party against whom allegations are made, agreeing to the divorce, rather than seeking to oppose it.
Until very recently, family lawyers have proceeded safe in the belief that in the absence of a completely “no fault” divorce system, a pragmatic family law judge would not look too closely at what has been said by the petitioner, providing the allegation had been made and the Respondent wasn’t opposing it.
However, a very recent example of a defended divorce can be found in the case of Tina Owens, heard in the Court of Appeal, highlights the problems that arise in having to rely on unreasonable behaviour in the face of opposition. After being married for almost 40 years Mrs Owens wanted a divorce and cited examples of her husband’s unreasonable behaviour. This included the husband’s continued upset over a prior affair, being silent during a meal in a local pub, and making inappropriate comments about her in front of her friends and family.
Mr Owens challenged the marriage had broken down and the original judge rejected Mrs Owens application stating she failed to prove Mr Owen’s behaviour had been unreasonable, particularly in the context of such a long marriage. The Court of Appeal expressed great sympathy with Mrs Owen’s position, but did not overturn the original decision as the judge at first instance had properly stated and applied the law to this case, and exercised his discretion correctly.
Anecdotally, there are already stories emerging of divorce petitions being returned from courts because the allegations are not “strong enough”. Unfortunately this may mean there are increased incidents of challenges and, ironically, more defended petitions than before, increasing anxiety and costs for all concerned.
What is clear is that the decision has highlighted the need for updating of laws relating to divorce, to reflect changes in modern society. Clients often ask: “if so easy to marry, why so hard to divorce?” and why can they not do so “without blaming the other party.” The government has since stated that there are no changes to the law expected in the foreseeable future.
Before proceeding with a divorce it will be increasingly important to get early legal advice from an experienced family lawyer, to reduce the risk of difficulties arising, and to ensure that matters can be resolved as amicably as possible in the circumstances.
For an initial consultation please call Slater and Gordon on Freephone 0808 175 7710 or contact us online and we’ll be happy to help.
Amanda McAlister is the head of family law at Slater and Gordon Lawyers.