An introduction to No Fault Divorce
By Deborah Murphy, Director at St Helens Law and Resolution member
I’ve lost count over the years of the number of times a perfectly amicable marriage breakdown – yes, there is such a creature! – has become bitter and acrimonious when the respondent receives the divorce petition. Why is this, I hear you ask? Surely if the marriage has broken down, one or other of the parties is expecting to receive a divorce petition, or else otherwise, how could they get divorced? The answer is yes, one party is expecting a petition – but may not be expecting what is in it.
Let me explain. To some people it comes as a bit of shock to find out that just because they’ve split up, the court won’t just let them get a divorce. Leaving aside all of the discussions that need to be had regarding children and finances, the first decision is generally who is divorcing whom. Well, they might say, it doesn’t really matter, we’ve both decided we want a divorce, we’ve just grown apart. That’s fine, I will say, so you’ll have to wait two years living apart and then providing the other person consents, we can issue a divorce petition. ‘How long?’ is usually the next outraged question. Two years I respond. ‘But why, we don’t love each other, we just want to be apart, move on with our lives.’ I agree, I usually respond, but the law is the law.
The only ground for divorce in UK law is irretrievable breakdown of marriage. There are five ways of proving this – five facts – and you have to choose one of them to cite in the divorce petition ( and for some, provide examples). The facts are:
- Unreasonable behaviour
- Two years separation with consent
- Five years separation
The first two facts can be relied upon in the presentation of an immediate petition. The third one can only be presented after two years has elapsed from the parties being separated, and needs the consent of the other party. The fourth fact requires five years separation. The fifth fact is not often used as while the wait to cite desertion is two years, the spouse seeking to rely on this fact has to prove desertion which is often problematic as it involves evidencing what was in the mind of the spouse ‘deserting’ at the time of leaving.
In practice, the most common facts relied upon are unreasonable behaviour and two years separation with consent. While adultery is also an ‘immediate’ petition fact, it has to be the reason for the breakdown of the marriage, and a lot of the time a client will be apart from their spouse, their marriage already over as far as they are concerned, and will find out that their ex now has another woman/man. This is not adultery and cannot be relied upon in a petition as the ‘other woman/man’ is not the reason for the breakdown of the marriage, but subsequent to it.
So, we are left with two years separation with consent and unreasonable behaviour. Two years is a long time to be in limbo waiting to move on with your life when your marriage is over. Despite popular opinion, it is my experience that people do not go racing off to get a divorce at the first tiff. Going to see a solicitor because of marriage problems is usually the final step and comes after all else has been tried. The holiday to make things right. The gifts. The promises to change. So, the parties have thought long and hard before deciding to separate. And then they are faced with two choices effectively: wait for two years or blame one party for the breakdown.
Let’s not be naïve. Faced with that choice, what would most people do? Two years – plus the time taken to get the divorce through the courts – counting every day down, or blame somebody else?
And that’s where the trouble starts. Unreasonable behaviour. It’s unreasonable. It makes the hackles rise on the mildest of recipients when they see examples of how unreasonable they have been written down in black and white. So, what started out as an amicable split then becomes heated and a tit for tat war of words in correspondence or texts. Facebook slurs arise. The kids become the middle of a tug of war battle. Suddenly, even though financial terms had been agreed, all bets are off and mortgage payments are missed.
So okay, that’s extreme. But it’s not uncommon. Half of the battle for solicitors is taking the fire out of negotiations, trying to soothe tempers and injured feelings. What seems perfectly rational and equitable when you split up suddenly feels as if you’re letting somebody else win unless you dig your heels in. Ceding a point feels as if you’ve surrendered, even if it gets you what you ultimately wanted. All because somebody has to be to blame.
Here’s a thought – why not have blameless divorce? Why not just have the law reflect the reality, that it’s nobody’s fault, the parties have just agreed that their marriage is over? For many years lawyers have campaigned for this very thing, many of them – like me – members of an organisation called Resolution, an organisation that has a code of conduct that encourages members to act in a way that removes as much negativity as they can between spouses, their solicitors and other advisers so that correspondence is not heated, and decisions are made in a common-sense, well-considered way. Basically, no mud-slinging, no using children/pets/financial inequality as ammunition and no emotional blackmail. The code of conduct encourages members to divulge the allegations that are proposed in any petition for unreasonable behaviour to the receiving party prior to issue of the petition so that any allegations that are likely to cause an incensed response are known in advance and if they are extremely inflammatory, perhaps a pared down version can be relied upon. Essentially, the bare minimum that the court will need to grant a petition based on unreasonable behaviour.
It’s a fine line, though. A recent case decided that although it accepted that the petitioner felt the marriage had broken down, the respondent had not, and therefore the facts relied upon were not sufficient to persuade the court that there had been an irretrievable breakdown of the marriage. In many lawyers’ eyes, it was a nonsense judgment, but it was a correct application of the current law.
So – where to next? It seems that the lobbying, and perhaps the case I mention above, has managed finally to make an impact. The justice minister has announced a consultation paper on changing the law so that it removes the need for couples to have been separated or to allege fault in order to obtain a divorce, and it is also consulting on removing the ability for spouses to contest a divorce application. It’s early days, but it’s a start, and one I for one am delighted to see.