Goodbye to civility in divorce petitions?

divorce

Over the weekend family lawyers have been up in arms about the decision of the Court of Appeal not to allow Mrs Owens’ petition for divorce based on the behaviour of her husband. Twitter has been buzzing with the great and the good saying how out of touch the law of our country is, forcing people to stay in loveless marriages. Some have suggested that the case shows that there are now three people in every marriage – two spouses and the state – and that how our law has regressed a hundred years and is now thoroughly out of touch with modern values and the modern family.

Why, you might well ask, are lawyers so bothered about this? Wouldn’t we relish the opportunity to have a highly contentious divorce and an opportunity to make more money? Are we unknowingly campaigning for our own extinction?

The Owens case, a defended divorce trial, is unusual because it is so rare. Very few divorces will be contested to the point that there has to be a hearing when the allegations in the divorce petition are tested by a Judge. In the vast majority of cases, where one party has decided the marriage has broken down, the other party sooner or later accepts its demise and one of them will then look to bring the marriage to a legal conclusion.

Our current law is based on citing one of five different reasons for the marriage breaking down irretrievably. There are essentially two types of reason for divorce. Fault-based being adultery or behaviour and non-fault based being separation for a period of two years provided both parties then agree to a divorce or, if not, then a period of five years. That is the fate that now awaits Mrs Owens: she will not see a legal end to her marriage now until 2020.

If we look back to the difficulties faced by Henry VIII in dissolving his marriage to Catherine of Aragon it is fair to say that divorce law has progressed. A divorce can be concluded within about six months and neither party need attend court nor appear before a Judge. It can all be done by post. Further reforms to the process would see the task of formally dissolving the marriage taken away from Judges and given to administrators, making divorce even more of a box ticking form- filling process.

However there does need to be a point at which somebody in officialdom has to decide whether a couple can be divorced. Dissolving a marriage cannot be too easy – if it is, then what’s the point in getting married at all?

When I saw, however, what was said about Mrs Owen’s petition, that the particulars of her husband’s behaviour that she had complained of were “anodyne” and lacking any substance, I could not help but think that so many of the petitions I have drafted could have been regarded in exactly the same way. That was always my intention, not to create further acrimony by describing in long and lurid terms all the terrible things my client claimed their spouse had done during the marriage. It is the way we have been taught to prepare divorce petitions and is entirely in the spirit of the Resolution code of conduct and the Law Society’s family law protocol. At the same time, my heart always sinks when I read a divorce petition from the other party that doesn’t take this approach. These indicate a solicitor who really should have known better but did nothing to restrain the desire of their client to get everything off their chest. Sure, it may be cathartic, but do you really want everyone to see all those ugly accusations and complaints? An emotive divorce petition often sets the scene for a more contentious dispute over child arrangements and finances.

This judgement in Owens may have two immediate repercussions. Firstly it will encourage obstinate spouses who wish to frustrate their other half from divorcing them. There is a financial consequence to successfully resisting a divorce. It means that the court cannot make financial remedy (previously called ‘ancillary relief’) orders. There was some speculation that Mr Owens may have had a financial motive for resisting the divorce. I do not know if that is the case. Maybe he simply didn’t want to be divorced and didn’t think his wife truly wanted it either. One thing is certain: they hadn’t had the happiest of marriages and they will have to remain married for a few more years to come.

Secondly, and to try to avoid the situation that Mrs Owens faced, we may now see more divorce petitions drafted in stronger terms. The adjectives used in petitions will be more forthright and memories will be dredged for the worst possible things to put in the petition. Ultimately a behaviour petition is partly a subjective test. How did one person perceive the other’s behaviour? Quite often there was nobody else present when this behaviour took place as it probably occurred, or didn’t occur, in the privacy of the matrimonial home. Imaginations may now run wild.

The law is in need of reform. Sure, there is an obligation on the state not to make a divorce too easy. Marriage is a serious endeavour and should create a strong and stable bond between spouses. Exiting a marriage should not be a casual process but surely the time has come to evolve divorce law to the point where people do not need to be living apart for 5 years in a broken marriage, in the face of stubborn resistance from their other half, before they can bring that marriage to a dignified end? In theory it won’t take the UK that long to exit Europe and let’s not even get started on a discussion about whether all parties in that divorce are willing!

For my part, I would reduce the period of separation by agreement down to one year and during that period the discussions necessary to finalise arrangements for the children and the financial settlement could take place. More significantly, the period of separation without agreement to a divorce should be drastically reduced from five years down to I would say two years. I know other people will have different views on how long the period of separation should be and two years is just my arbitrary opinion though I have read support for this amongst other lawyers and it is also one of the reasons used for a divorce in Scotland.

There is a continuing lack of appetite for reforming divorce law at government level. However family lawyers and other campaigners for no fault divorce are not looking for a major overhaul of the entire family justice system. Reforms should be relatively simple and should greatly ease the pain and speed up the healing process for divorcing couples.

Image by Xavier Vergés via Flickr under a Creative Commons licence

Julian Hawkhead

Julian Hawkhead is Stowe Family Law’s Senior Partner and is based in our Leeds office.

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26 comments

JamesB - March 27, 2017 at 9:24pm

An anodyne divorce petition is a contradiction in terms. That lawyers say it is possible is because they live in a bubble with the educated metropolitan liberal elite. Speaking as someone who has received a dodgy decree nisi based allegedly based on behaviour which makes it unreasonable for petitioner to be expected to live with , is out of order. Only received because for the purposes of the divorce only I did not want to defend the relationship. Process Needs to be changed to make it a tick box and prenups legal. Like in Scotland. Divorce law is neither here nor there in this jurisdiction and is a complete mess and needs sorting out.

JamesB - March 27, 2017 at 9:31pm

Do I regret not defending the made up dodgy petition against me? Yes. I say that as it then went on to form the basis of me being ripped of and was full of lies. I could stomach it if the settlement was fair, but she then went on to stitch me up based on conduct not being relevant and her having the children.

If I were getting divorced now, following this ruling I would,
1. Not agree to not defend until a financial settlement is obtained.
2. Agree both together

Prenups or postnups would be preferable and enable me not to regard this as an issue and that is the main point which would make the dodgy decree nisi redundent as pre or post nup would be agreed.

Saying conduct is not relevant then making it the basis of the divorce is a contradiction.

Think Nicholas Halls words above, but his point is valid, both things cant be right, conduct is either relevant or not, I say not and marriage vows mean nothing without prenups and postnups being binding. Or you go the other way. The law argues both at once and is ridiculous. The law Needs to change.

Andrew - March 28, 2017 at 9:35am

JamesB: You are generally right but as I have said before prenups must be subject to postponement for the benefit of minor children during minority (or higher education to first degree level) – I hope you agree.
_
Pension sharing makes the concept of “grave financial hardship” obsolete and as for other “grave hardship” I don’t see that plea ever succeeding again. It’s a pity that when pension sharing was introduced the government of the day did not have the guts to say that that makes defending a divorce so much nonsense, let’s end it and make divorce an administrative function in law as it is in fact.

JamesB - March 28, 2017 at 11:23am

Sorry Andrew, I do not. I say this as you don’t include much thought for the non resident parent in your comment and comes across as educated metropolitan elite bubble where plenty of money to go around ;-). Quite often there is not.

Your system for example would mean non resident parents splashing out for twenty years waiting for a payoff. Not much of a life. Better postpone the divorce while children are in minority than that.

JamesB - March 28, 2017 at 11:34am

Thinking about it, increasing numbers of people seem to be doing that anyway, postponing divorce until the children grow up. Fair play and respect to them, much better than the messy divorces involving children where limited assist. Speaking from much tired experience. Better still find right mate and stay together, with help of social religion and family and welfare state, all of whom could help families get together and stay together more for example with relationship classes. Now divorce and separation is evidently not often good option as per that disenfranchised man on Westminster Bridge.

JamesB - March 28, 2017 at 11:37am

He had lots of children by lots of women and csa and society chasing and having a go at him for it. Not that I defend his actions last week at all.

JamesB - March 28, 2017 at 11:40am

His exes with children in the half million pound houses, him in bedsit paying for them. No thanks. Is that what you want? Because that’s will happen. Is happening day in day out in this poor pathetic excuse for a family law system we have in this country. No wonder sadly so many avoid getting married to avoid it.

JamesB - March 28, 2017 at 11:59am

Rather than just blaming the man which de facto has been what has been happening and is out of order and a cop out.

The court of appeal was rule to say what they did, that ground was not intended like that. Not intended as a loophole for a free for all and lawyers bills and driving people to have mental health problems.

There must be a better way. And by that I don’t mean strengthening the divorce petitions. When two of my cousins divorced recently they surprisingly followed my advice and went the two years with separation route rather than the solicitors advice to stitch their husbands up and pay lawyers bills. Or lies by consent. Lying about made up ub without consent is out of order and I agree with the ruling.

Lawyers including yourself are deafening quiet on of they agree with the ruling or not. I suppose because it says what they have been doing for the kast forty of years is COMPLETELY OUT OF ORDER. And they should be ashamed of themselves. Well the government for not sorting it out really.

What I slept on last night and what I come up with this morning.

JamesB - March 28, 2017 at 12:15pm

The law by just calling the non resident parent names and penalising him through the process is bad and the court were right to point that out. There has to be a better way. To anyone who receives this nonsense petition prayer for divorce crap (apart from your 1999 example) I urge to ignore it until the financial agreement is set in stone.

JamesB - March 28, 2017 at 12:19pm

Solicitors and politicians and politicians should hang their heads in shame for this dodgy state of affairs. strangely unlikely that though. Like estate agents, it’s dirty business for them. Perhaps politicians should hang their heads in shame on this matter as a minimum. Well. As a minimum. Sort the bloody thing out will you please.

JamesB - March 28, 2017 at 12:21pm

By that for the better please. Not the sfla way meaning more stitch ups and breakdown of society. My way is better than that and best. Do nothing loses its appeal when people start driving on pavements.

JamesB - March 28, 2017 at 1:00pm

I should also mention that upon separation a period of calm and reflection is usually best. Perhaps a year. I think that’s what the Scots have. Sticking a dodgy name calling petition against the other is the opposite of that.

The two years is what parliament intended for most people in this jurisdiction.

JamesB - March 28, 2017 at 1:05pm

The Government had experts including the code when they drew it up Wachtel vs Wachtel was bang out of order and the courts have rightly reversed that with this ruling and, like our relationship with The European, it needs sorting out properly. With the engagement of appropriate stakeholders not just the usual sfla/feminist/lawyers/metropolitan liberal Elite. Please involve the likes of Fnf (I’m not a member) or indeed men to the table drawing up the legislation in future. Not including them in a wide consultation thoroughly thought through in the past is what got us into this mess, and it is a mess.

Cameron Paterson - March 28, 2017 at 1:30pm

You certainly have a lot to say at the moment James!

John Bolch - March 28, 2017 at 4:44pm

I am reminded of why I no longer allow comments on my blog…

JamesB - March 30, 2017 at 12:38pm

I am reminded why I do not read John’s blog, too sanctimonious.

JamesB - March 28, 2017 at 1:46pm

The Marriage rate is therefore on the rise is Scotland and higher than in E and W as they have better family law and less people avoiding marriage and children due to better more representative law more in line with natural law.

Oh. Last point, pretty and post nuts need to be affordable and enforceable too. About 200 quid sounds about right.

JamesB - March 28, 2017 at 2:38pm

The ruling brings the practice of family law into disrepute. Their behaviour and family law needs to change to be more suitable to and applicable for normal peopyand natural law.

JamesB - March 28, 2017 at 3:04pm

That the law has been written for women rather than for women and men and children is the issue and it needs to be rewritten accordingly. The men as perpetrators and women as victims view is blinkered and needs to be more adaptable and in-line with something which would work better. It is the usual tune and is usually wrong. Play a different tune please as you are losing the consent of the men. Informed consent I believe is the legal term, and the court correctly pointed out that government and family lawyers seem to be letting it slip through their fingers.

JamesB - March 28, 2017 at 3:07pm

The maintenence, including child maintenance amounts liabilities put on non resident parents are too high also. It says in the act they should be reviewed every 5 years. That they have not been and are not also illustrates bad government and law.

JamesB - March 28, 2017 at 9:24pm

Last csa/cmec/cms/captions act – amount to be reviewed and reported on and set again each five years for the formula after each general election. It has not been. Government ignore real issued and expect votes out of family loyalty, that is them pushing their luck too much.

JamesB - March 28, 2017 at 9:26pm

Newsflash

Reversal of Wachtel v Wachtel 75. Thank God, inch Allah.

Isn’t it? Perhaps one of you professional lawyers out there could advise on that please?

JamesB - March 28, 2017 at 9:49pm

Thanks. Men and non resident parents could do with a lot more bargaining chips for divorce and separations and relationships. Thanks especially to the man in question for defending. Guttsiest move I ever saw Mav. Excuse the Top Gun analogy. Bet he had a bit of money and could have afforded to lose though where I couldn’t. best respects and thanks to him a lot either way.

Lymphads - March 29, 2017 at 11:25pm

This is an object lesson about complacency in advising the client and in legal drafting. No adviser should let his view stray from the statutory standard of an unreasonable behaviour divorce, “that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent”. It ought never to be regarded as a fait accompli, or fig-leaf. I write this as one who has advised a client who successfully defended a divorce on the merits of unreasonable behaviour. I am, I suspect, along with many practitioners, astounded that the petitioner’s advisers accepted instructions to proceed on such flimsy grounds and, those grounds having been rejected at first instance, to have accepted their client’s instructions on a course that has wasted their client’s substance to such an extent. They ought, metaphorically, to be taken out and shot. A separation and a modicum of patience, even given the chance of death and an adverse will, might with foresight have been the better course.

JamesB - March 30, 2017 at 11:19am

I remember seeing an old black and white Pinewood studios film about gangsters in London once, the thing is, in the film a woman meets a man (as so often in films or vice versa) but the problem is that she is already married but her husband is locked up in Prison. The film was filmed before the 1973 MCA.

The film also works on the premise that it is necessary for a couple to get married in order to have a proper relationship.

So, like a good friend of mine did, she went to her husband and talked to him and asked him for a divorce, adult to adult.

So, my point, solicitors should advise their clients to do that and sort their problems between them if necessary through mediation.

My friend got her ex to sign a petition saying 2 years separation with consent rather than unreasonable behaviour, even though there had not been and it was all a bit more amicable then the mud throwing approach which doesn’t help.

I think this way is becoming more and more the case faced with the alternative animosity and legal and mental health bills emotionally and financially for all concerned.

I think the old way is better than the new way. If it were up to me I would scrap the UB ground, completely. It has caused nothing but ill will and bad blood and is not being used as it was intended, to protect vulnerable people, they can and are protected outside of divorce so scrap it.

Kevin O'Riordan - April 2, 2017 at 11:48am

Surely one point here is that the statute does not necessarily require the behaviour (or other underlying basis for the divorce petition) to be causative of the irretrievable breakdown of the marriage, but simply to exist in parallel with it.
I have not been able to determine from the reports of the Owens case to what extent (if at all) the Court at first instance may have misdirected itself in this respect.

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