Marilyn Stowe Blog

The genie is out: divorce procedure has changed forever, so why hasn’t the law?

The Directgov website has many bullet point guides to all types of family crises: debt; house repossessions; all aspects of family breakdown; even death in the family. I recommend its pages to anyone who finds themselves in such situations, and who would like to understand the basic law and their potential options.

And while it is no substitute for tailor made legal advice, divorce law and procedure is set out in simple terms on the site.

The procedure to obtain an uncontested divorce has altered almost beyond recognition over the last 40 years, even though there has been no change in the law. If unreasonable behaviour is alleged for example, the standard for proving that “the petitioner should not reasonably be expected to continue to live with the respondent” originally had to be overwhelming.

Almost forty years ago when the Matrimonial Causes Act 1973 came into force, the only way to obtain an uncontested divorce was by first going to court - because a Decree Nisi of divorce could only be pronounced in open court. A Petitioner therefore had the embarrassment of giving evidence of their spouse’s adultery or unreasonable conduct. In the latter case this involved describing lurid behaviour to a suitably ghastly standard in order to obtain a divorce that in fact both Petitioner and Respondent were seeking from each other, all in a public courtroom to a judge who was not as compassionate in those days as most are today.

He would sit high-up on his judicial chair, in his robes and wig, solemnly taking notes and carefully checking the court papers for even the slightest error. If heaven forbid he found one, he would immediately dismiss the case.

In those days the judge was unafraid to question the petitioner and the witnesses (who were also required to back up the Petitioner’s allegations) on the most intimate and personal details of the marriage as recited in page after page of the petition, until he was satisfied that the behaviour was unreasonable. Only then would he pronounce a Decree Nisi before a literally gobsmacked court of anxious Petitioners, sitting in row upon row at the back of the court awaiting their turn along with their own witnesses to endure the same process.

As a trainee I was sent along to marshal all of our firm’s Petitioner clients and their witnesses, trouping them over to court and introducing them to the same barrister who would represent them, one-by-one. Some clients couldn’t cope, and therefore didn’t fare very well. I can remember one particular case where the judge appeared to become impatient of one of our firm’s quieter clients, who gave whispered evidence very reluctantly, and denied her a divorce. I remember she broke down in the courtroom before I took her for a coffee, sending her shocked witness home. I had to sit with her for some time, helping her to come to terms with the humiliation of her court experience. I tried to make her smile, and eventually she did.

The decree process in those days was one of the most humiliating and unpleasant processes I encountered in family law of yesteryear, but it was also an indicator of how very seriously getting a divorce was treated at that time. It wasn’t rare either: there were many people who wanted a divorce and the “divorce days” were packed full.

Slowly this gruesome process – but not the basic law – has evolved into something more humanitarian, respectful and private. We are reaching a stage where soon it is thought a judge will no longer be routinely be involved at all, and a clerk working in the court office will check all is in order and certify a Decree Nisi. Which raises the question: should the pronouncement of a decree of divorce be a mere tick box exercise, or should it remain a judicial process but carried out in a different way?

No public hearings currently take place nowadays unless a divorce is defended – which is very rare. Even then, there will usually be at least one private hearing beforehand, where a district judge will try and “knock heads” together, to avoid a full-blown public court hearing taking place where the press may be present. An undefended divorce is now a fully paper-based procedure. The requirement for independent witness evidence was retained for some years after the procedure changed, but witnesses were sworn to Affidavits, instead of giving evidence in court. Witness corroboration is now no longer required. Even where adultery is alleged, an admission by the Respondent is sufficient for a Decree Nisi of divorce. Corroborative evidence is only required if the Respondent refuses to admit adultery with an unnamed person.  A Co-Respondent should also no longer be named and shamed. The reams of lurid allegations of unreasonable behaviour have also been generally reduced to a few key paragraphs, which if studied by those gimlet-eyed judges of yesteryear would surely not hope to pass muster. In fact, it’s my experience that nowadays it is rare for an unreasonable behaviour petition to be found below par. Yes, times have markedly changed in practice.

The reason that undefended divorce decrees are being routinely nodded through, is that most involved in the divorce process – lawyers, clients and judges – recognise the need to keep the temperature of the overall process as low as possible. The behaviour alleged has to be as “anodyne” as possible. Practitioners understand the need for couples to focus more on their separate futures, independent of each other, in the interests of the entire family and society in general. Nothing practical is to be gained by dwelling on the past, not least since both parties will usually have their own, entirely different versions of the same incidents.

But even though the process is far more pragmatic and streamlined, the law has still not caught up. Successive governments have fought shy of divorce reform since the last failed attempt, the Family Law Act 1996, which tried and failed to come up with a better answer. Nowadays politicians and the media seem to dwell on law reform as a means of making divorce harder, in a futile bid to keep failed marriages together.

We have had plenty of discussion on the blog about law reform but few others outside of the profession (the President of the Family Division, Sir Nicholas Wall, discussed this recently) seem to have fully appreciated what has already happened and cannot be changed.

So, although the genie is well and truly out of the bottle, the law is stuck exactly where it was forty years ago.