A recent article in the Daily Mail stated that a Wife whose case went to the Court of Appeal argued that her husband should never have been “allowed” to divorce her because the grounds were so “trivial”.
The article tells of how she had broken down in tears in Court when she described the particulars of his unreasonable behaviour petition as “normal squabbling between a husband and wife”. According to the piece, the Court of Appeal, though sympathetic, did not allow her appeal. Thorpe LJ said that although the marriage could not be saved he felt “the sadness of the wife’s position and her complete inability to accept what has happened to her.”
I often come across situations where one party wants a divorce but their spouse does not feel ready to let go of the relationship. In those circumstances, it is only right that the person who feels the marriage has irretrievably broken down has the right to bring it to an end. Having explained to many clients over the years that if they have not been separated for two years and both parties have been faithful, they need to cite some aspects of the other party’s behaviour, I am very familiar with the emotional reaction of the wife in this case to the particulars cited by the husband.
The current practice among family lawyers and endorsed by the Courts is to make unreasonable behaviour particulars in a divorce petition as mild as possible. Many clients want a divorce but do not wish to have to make allegations against the other. However they have no alternative if a divorce is to proceed without waiting at least two years. For a system that is meant to help parties move on, reflecting on the wreckage of a broken relationship by picking out the aspects that are least offensive (but still offensive enough) seems an odd starting point.
If one party is not ready to accept the end of the relationship, then citing their behaviour is only going to rub salt in the wound, inflame tensions and lead to an escalation of ill-feeling. I have sat with many clients who feel guilty that they have come to the end of the road before their partner has got there. We then ask them to point the finger at the other party to achieve the finality they seek.
Clients are always amazed to hear that the reason for the breakdown of the marriage and one party’s behaviour towards the other has a negligible impact on the division of finances. Furthermore spouses’ behaviour towards each other has no place in law in children proceedings, where the child’s welfare is the court’s paramount consideration. The reasons for the marriage breaking down will usually have no bearing on decisions over contact and residence.
Why then, is there a need for particulars of behaviour to be cited in a petition? It has no relevance to anything. Behaviour petitions are a “means to an end” and that is the advice that clients are receiving every day on the ground. Furthermore, at a time when the Family Justice System is under intolerable strain and where both judicial time and time spent by court staff is at an absolute premium, a more straightforward system which recognised in legislation the position on the ground would have practical benefits as well. The case for removing divorce from the court system was well put by the President of the Family Division recently at the Resolution National Conference when he said:-
“At the moment, it seems to me we have a system – so far as divorce itself is concerned – which is in fact administrative, but which masquerades as judicial. No doubt this has its roots in history. In the 19th century, and for much of the 20th, divorce was a matter of social status. It mattered whether you were divorced or not, and if you were, it was important to demonstrate that you were the innocent party. All that, I think, has gone. Defended divorces are now effectively unheard of.”
California paved the way with the introduction of no fault divorce in the Sixties. It is the norm throughout much of the developed world. It is time that divorce law moved into the 21st Century. Attempts to move to a no fault divorce in 1996 did not pass through Parliament due to opposition. Times are changing, as our expectations and wishes of clients, and it is time the law changed.