Here are my personal views on the no fault divorce campaign in England and Wales.
What are the Grounds for Divorce in England and Wales?
To make an application for divorce in England and Wales a person needs to show the court that the marriage has “irretrievably broken down“. To do this, they have to choose one of 5 factors. In short, if the couple have not been living apart for at least two years, there are only two options left;
- Adultery or
- Unreasonable Behaviour
I often get told by my clients that they wish to divorce based on ‘irreconcilable differences‘ to avoid upsetting/angering their spouse, who may not wish to divorce. Unfortunately, whilst available in the United States, this option is not presently available in England and Wales. Therefore, under our legal jurisdiction, the couple who wish to get divorced before living apart for 2yrs, have no choice but to use one of the two fault-based divorces.
The need for change to a ‘no fault’ divorce
Like many other divorce professionals, I support the desperate need for change in the divorce law in England and Wales to provide couples with the opportunity to divorce their spouse without appointing blame. Setting out in black and white in the divorce application personal details of incidents and situations that have taken place during the marriage, risks causing unnecessary additional animosity between the couple at the very first stage of the divorce process. I see the consequences of this first hand, in my work as a divorce consultant. It causes great bitterness and upset.
It can also risk serious consequences in cases of emotional and/or physical abuse. Clients I have worked with who have been the victim of abuse are usually terrified of having to formally state what has happened to them in during the marriage, in fear of comeback from their spouse (inflicting further abuse on them).
In addition, the reasons cited in the divorce petition have little to no bearing on resolving either children or financial matters, so there is really no need to create further acrimony between the couple. No one gets married thinking that they will end up getting a divorce and it is already a difficult and upsetting situation for everyone involved. The present requirement to cite reasons for the divorce is unnecessary and inappropriate.
What my clients say
Whilst some clients have felt happy to cite the ground of adultery as the reason for the marriage breakdown, I can honestly say that no clients I have worked with, have ever felt comfortable and/or happy to be told about the unreasonable behaviour information. All my clients find this exercise very uncomfortable – whether they are the person pursuing the divorce and are therefore required to prepare the notes or are on the receiving end of the divorce application and are having to read details about their personal behaviour set out in a formal court document.
For the person initiating the divorce
Some clients initiating the divorce have even asked me whether it would be possible for them to lie and pretend there had been adultery or that they had been living apart from their spouse for at least two years. They want to do whatever they can to avoid having to set out details of their spouse’s behaviour in a formal court document. They worry it will aggravate their spouse and make negotiating an amicable agreement regarding money and children issues much more difficult and expensive (with the risk of requiring greater input from legal professionals and/or the court). There may also not have been bad behaviour, but the couple have become unhappy with each other and wish to live separate lives.
In my experience with clients, being the decision-maker in a divorce isn’t necessarily any easier than when the decision has been made for you. Those taking the initiative over the divorce can struggle with feelings of guilt and responsibility for breaking up the family. As such, many want to avoid causing any further upset or distress to their spouse in the divorce process itself and wish to work with me to ensure that things are kept as amicable and civil as possible during the process. This is particularly the case and of importance when there are children involved. Then, the couple will be in each other’s lives for the rest of their lives, as parents to their children.
For my clients who are on the receiving end of the divorce application, they can really struggle to accept details of their personal life and behaviour set out in a formal court document.
I have had some clients who have decided to approach their spouse to agree between themselves what will be included in the unreasonable behaviour particulars before the information is provided to the solicitor who will be representing the petitioner. In these cases, the client has wanted to avoid pushing any buttons of their spouse and their focus has been to put things on an amicable footing from the beginning of the process. This helps save time, money and stress for both parties; putting the case on the right footing.
My top 4 reasons for the need for a change in the law:
- For many couples there may not have been ‘bad behaviour’. They may simply have both decided that they are unhappy in the relationship and no longer wish to be married. Why then force them to find fault in their spouse and list details of this in court documents? Falsely making out their spouse is a bad person, when they are not.
- Appointing blame for the breakdown of the marriage on to one of the couple, risks causing an increased amount of animosity between them, at what is already a difficult time. This could then make the legal process more difficult to navigate with the couple at odds from the beginning of the formal process.
- The steps involved for the preparation and process for one of the fault-based divorces, increases the time and costs for the divorce process and thereby reducing the funds left in the family money pot for division between the couple in the financial settlement.
- The reasons for the breakdown of the marriage have little to no bearing on how the law approaches financial and children issues in a divorce. The person blamed for the divorce, will not be penalised financially because they are said to have caused the divorce through their adultery or unreasonable behaviour. So, what’s the point?
The national campaign for a no-fault divorce
2018 has seen a big push by many divorce professionals in England and Wales under the campaign run by the Organisation Resolution for there to be a change in the divorce law. This has been strongly influenced by the case of Mrs Owens (Owens v Owens) who was told by the judge in her case that the unreasonable behaviour particulars she had provided were not sufficient to warrant the judge granting her a divorce. She appealed the decision and the appeal judgement was published on 25th July 2018, stating she had lost her appeal. She is therefore forced to remain married to her husband for the time-being. Surely no one should be forced to remain married to someone they don’t want to be? Whilst I am not suggesting divorce should be ‘made easy’, in my humble opinion, it should not be for anyone else to decide (not even a judge) whether the reasons a person chooses to get a divorce are sufficient enough. It should be a subjective test and a personal decision.
The outcome of Mrs Owens’ appeal with be announced later this month. Whatever the outcome of that particular case, fingers crossed there is a positive change in the law soon, allowing couples to avoid animosity caused by the divorce process itself.
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Why I became a divorce consultant.