No fault divorce
The no-fault divorce is finally going to happen in 2022 and it came about in the wake of a much publicised case where a wife unsuccessfully sought a divorce from her husband complaining of his alleged unreasonable behaviour. The case reached the Supreme Court, the highest Court in England and Wales. However, it is the decision made by the first instance judge in the County Court that set the tone for the case. The judge decided that the individual allegations made against the husband were not of sufficient severity (or “weight”) to justify a divorce. The issue of whether the totality of the allegations over the marriage justified a divorce was not argued before the Court.
There is only one ground for a divorce – namely that the marriage has broken down irretrievably. In order to obtain a divorce, the person bringing the Petition (“the Petitioner”) needs to prove, normally on paper, that one of five “facts” have taken place. These can loosely be described as adultery, unreasonable behaviour, desertion, two years separation with the consent of the spouse and five years separation. This applies to heterosexual couples. Same sex couples cannot base a Petition on adultery.
The majority of Divorce Petitions are based upon allegations of unreasonable behaviour by one party against the other. Anecdotally, this is because in the majority of divorces, the other “facts” are not available. In particular, a party wishing to proceed quickly with a divorce is unlikely to want to wait until they have been separated from their spouse for two, or even five, years.
The question then arises how serious do the allegations need to be. There was a time when a Petitioner would routinely vent their anger or disappointment at the end of the marriage by describing the details of the unreasonable behaviour in graphic and aggressive terms. Experienced showed that this would, all too often, set the tone for the rest of the proceedings. Over time, there has been a conscious move – particularly from members of the national specialist family law organisation, Resolution – to encourage a non-confrontational approach this has the support of The Law Society.
Language to be used
The Petitioner is now encouraged to use non-emotive language, and to present the allegations of unreasonable behaviour in less graphic and confrontational terms. It is understood the judges are encouraged not to question “weak” allegations if the receiving party (known as “the Respondent”) has chosen not to defend the divorce proceedings. The Petitioner is also encouraged to show a draft of the Petition to their spouse (through their solicitors if they are instructed) with a view to trying to agree the wording of the allegations so as not to cause unnecessary offence.
What should you do if you are uncertain if your spouse might contest the allegations or threaten to defend the proceedings. The answer is probably to still adopt as non-confrontational and non-controversial form of words as possible. If you are unsure the allegations you have selected are sufficient, and there are other, more serious, allegations that you might raise, the best way forward is to include a statement in the Divorce Petition that: “the Petitioner reserves the right to add further particulars of the Respondent’s unreasonable behaviour in the event the Court request the same or the Petition is defended”. By doing this, you are making it clear both to the Court and to your spouse that there is more that could be said but that in the spirit of conciliation and goodwill you will not to do so unless it becomes necessary.
You may be very hurt by the breakdown of your marriage. However, it is important not to use the Petition as an opportunity to “score points”. This is particularly so where there has been little or no intimacy, or that intimacy has been unsatisfactory. You may feel that including such matters in the Petition will cause your spouse embarrassment. However, there is every risk that such a tactic will backfire as such embarrassment is likely to lead to a significant loss of goodwill, which you may well live to regret.
In summary (and this is not a comprehensive list):
- Do not write an essay about your spouse’s alleged unreasonable behaviour. Four or five brief paragraphs (perhaps with a date in the last 6 months, if appropriate) will suffice.
- Try to use language that is not emotive.
- Do not use the Petition as a means of point-scoring or causing embarrassment.
- Think how you might feel if the allegations were made against you.
- Unless there are good reasons to the contrary, do let your spouse have sight of the draft Petition before it is filed with the Court and give him or her the opportunity to make comments – not forgetting that if you are Petitioner, you do retain “editorial control”. However, if there are amendments that your spouse would propose which would not undermine your Petition, do consider accommodating such proposed changes.
Separation and divorce will be an emotional and sensitive time for both of you. Do bear that in mind and do not forget the old adage – but remember it is not always true……!