Divorce with dignity is the way forward

rcj“Our society in England and Wales now urgently demands a second attempt by Parliament, better than in the ill-fated Part II of the Act of 1996, to reform the five ancient bases of divorce; meanwhile, in default, the courts have set the unreasonableness of the behaviour required to secure the success of a petition on the second basis, namely pursuant to s.1(2)(b) of the Act of 1973, even when defended, at an increasingly low level.” – Wilson LJ in Miller Smith –v- Miller Smith 2009 EWCA 1297

Stowe Family Law represented the successful husband in this case. The judgment of the Court of Appeal, heard before the President and given by Lord Justice Wilson, was handed down today. I will not of course discuss the specific facts of the case and nothing that follows does so. But, on a general note, Miller Smith is a useful example of alternative options available to deal with the financial problems caused by a defended divorce.

In such cases, finances cannot be dealt with in the usual manner, as the brakes are firmly applied until the divorce is out of the way, which could take a very long time. What is one party to do, who wishes to move on with his or her life and finds themselves apparently stymied?

Defended divorces are rare, and a practitioner will thus only occasionally come across the problem. But there is an alternative route in appropriate cases – the use of other law, such as section 14 of the Trust of Land and Appointment of Trustees Act 1996 (TOLATA) and section 17 of the Married Womens Property Act 1882, to obtain an order for sale of jointly owned property, and section 33 of the Family Law Act 1996, to secure an occupation order of property.

The exercise of those options by the court is discretionary, however, and whilst the Court of Appeal in today’s judgment, emphasises that adopting the “holistic” approach within divorce proceedings is preferable, it also gives useful guidance on the threshold that has to be crossed for it to make these alternative orders.

What sprang off the page for me, though, is the quote above from the Court of Appeal relating to what seems to me a strongly perceived need for family law reform. The Court  has drawn attention to a dichotomy- a practice which has grown up over several years, where parties going through divorce are expected to try and resolve matters as sensibly and amicably as possible, yet obliged to throw mud for the process to conclude swiftly.

Current law in England Wales requires a marriage to have irretrievably broken down, if a divorce is to be obtained, and for this to be proved by one of five facts. Those (briefly) are:-

1. Adultery and the Petitioner finds it intolerable to continue to live with the Respondent.

2. The Respondent’s behaviour is so unreasonable that the Petitioner cannot reasonably be expected to live with the Respondent.

3. The parties have been separated for two years and both consent to a divorce.

4. The Petitioner has been deserted for two years by the Respondent

5. The parties have been separated for five years.

The only way of obtaining a divorce, therefore, without a wait of at least two years, is by alleging misconduct, whether by way of adultery or unreasonable behaviour. In the absence of proof of the former, the latter is almost always the chosen method of initiating a divorce, as statistics demonstrate.

But allegations of unreasonable behaviour in a divorce petition, starkly set out and frequently viewed as exaggerated or invented by a Respondent to a petition, are very unhelpful in setting the tone for negotiation of the issues that follow: namely children and finances. The Respondent will be inflamed, and may give instructions to fire off a cross petition, to put another side to a story, that no-one – least of all the courts – particularly wishes to know about and would prefer to be kept private.

So, in recent years, to avoid this and heightening the temperature of cases, the tendency has been to keep allegations of misconduct as minimal or anodyne as possible. It is considered good practice (The Law Society’s Family Law Protocol) where possible for practitioners to try and agree the proposed “unreasonable behaviour” with the other lawyers, and once this has happened a suitably sanitised petition is presented to the court.

Similarly, the Courts have adopted the practice of allowing, through such a petition, a much lower standard of “unreasonable behaviour” than some years ago, precisely to achieve the sensible aim of conciliation and swift resolution of the entire process.

But it does make a mockery of the current law, doesn’t it? Worse still, the present law doesn’t reflect what all but the tiniest fraction of divorcing couples,  practitioners and Courts are trying to achieve – a straightforward, low key, cost effective and amicable  settling of all the issues thrown up by a case.

And here I return to the principle of swift, “no fault” divorce, of which I am strongly in favour. I have a simple viewpoint. If parties can make up their respective minds to marry, then they may do so without ‘hoo hah’. Similarly, if they decide to divorce, they should be able to do so equally swiftly – with dignity and less cost and without mud slinging…and without expensive nannying either.

A problem arises where only one party to the marriage wishes to divorce and steadfastedly refuses to consent to it. It seems to me there should be a (rare) option, with costs risks – a fall back position that “in extremis” a court may make a decision based on fault. There could also be provision for financial relief, irrespective of a defended divorce. How that is to be achieved, however, is something for brilliant brains, specifically tasked with the job, and definitely not one for a day dreamer such as me!

Marilyn Stowe

The senior partner at Stowe Family Law, Marilyn Stowe is one of Britain’s best known divorce lawyers with clients throughout the country, in Europe, the Far East and the USA.

View more from this author

6 comments

Lenny - December 6, 2009 at 9:48pm

Quote Marilyn Stowe

“But it does make a mockery of the current law, doesn’t it?”

It’s much worse than that. The “law” makes a mockery of the institution of marriage because it embraces and elevates ignorance and simplistic specious equivocation over better education and understanding of the reality of marital problems.

Only a fool would fail to recognise that some marriages will inevitably break down, but the question is whether they need to be as numerous as is currently the case. One of the objectives of the 1996 Act was to try to identify and support those marriages which may be capable of retrieval. It’s difficult to see how that could come about until more education and understanding of marital problems is injected into the system, yet wherever you look, the legal profession seems to be in opposition to that objective.

Quote

“I have a simple viewpoint. If parties can make up their respective minds to marry, then they may do so without ‘hoo hah’. Similarly, if they decide to divorce, they should be able to do so equally swiftly – with dignity and less cost and without mud slinging”

If one half of a couple wishes to marry, and the other half does not, then they won’t marry. On the other hand, if as you say, they have both made up their respective minds to marry, then they will. To put it another way, one person cannot force another person into marriage.

Compare that with what currently happens with divorce and with what you propose. If one half of a couple wishes to divorce, then as you have stated in several posts, irrespective of what the other half wishes, they will divorce. In other words, whilst one person cannot force another into marriage, they can force them into divorce.

Consequently, I can see no consistency or correlation between the two situations, and would suggest that your “simple viewpoint” rationale for why or how the law should be redesigned, would simply reinforce the iniquity and ignorance inherent in current practices, and there is little dignity in either iniquity or ignorance.

Quote

“…and without expensive nannying either.”

I presume the word “nannying” in this context means anything which would enable potential divorcees to acquire a deeper understanding of their marital problems and alternative ways through them, and which would thus equip them to make a more informed and objective decision on whether to view divorce as the only option.?

The simple fact is that most people who divorce have little or no understanding of the complexities of the underlying causes of their marital problems, or what can be done to tackle them, and as a result divorce on the basis of ignorance.

Could I ask you, do you accept that marital problems are complex issues that usually have unconscious underlying causes.?

In a reply to a post by someone else in another entry, you stated the following;

..I have never been instructed by a client who has not agonised on the decision to end their marriage, and in so instructing also believes that there is no viable alternative for themselves or their children. If they did, they would not be instructing me.

Clearly your reply centres on the word “believes”. The belief you speak of would be fine were it to be based on a clear understanding of the reality of the issues involved and what could be done to tackle them. Are you claiming your clients are always in possession of that understanding when they instruct you.? In the absence of that understanding the belief is no more than a combination of ignorance and prejudice. Is that really a sensible basis for instruction.?

JamesB - June 19, 2012 at 3:07pm

Just wanted to say that these dodgy petitions do make a mockery of the current law.

To be black and white, either you have marriage or you do not, to have a marriage with no fault divorce is no marriage at all. May be ok for Americans, but not in this country. Hence the decline in Marriage.

Indeed, we no longer have traditional marriage in this country since Wachtel v Wachtel and about 1973.

JamesB - June 19, 2012 at 3:16pm

I do think they should abolish this ground as it’s only use is for lawyers. If couples want a divorce, and to lie they can alledge adultary. This UB reason is rubbish. If there is no good reason and no consent, then YES THE PETITIONER SHOULD BE FORCED TO WAIT RATHER THAN DRAFT DODGY PETIOTIONS WHICH MAKE A MOCKERY OF THE LAW IN THIS COUNTRY.

JamesB - June 19, 2012 at 3:17pm

At least with adultary you know if it’s true or not, receiving a UB petition is crazy and can drive you crazy, it makes no sense.

JamesB - June 19, 2012 at 3:21pm

And if you are a petitioner, avoid that one like the plague, despite what the lawyers say, there is no such thing as “An Anodyne Divorce Petition”, I mean how stupid is that? Obviously a contradiction in terms and ridiculous, FFS. The shame is now that less well off people cannot marry now as they can’t afford the no fault divorces, that is the real shame and the decline in society due to this feminist entitlement nonsense.

JamesB - June 19, 2012 at 3:22pm

I also disagree on the costs point, and essentially everything you wrote in this article including the spelling and grammer and language isn’t up to your normal quality. Shows the contempt lawyers (and everyone) view the actual divorce 9and thus marriage) process.

Leave a comment