For most people a divorce is an emotional and stressful time. Instructing a divorce lawyer can be daunting; which solicitor to instruct, the cost, understanding the legal terminology and procedure.
In my experience most clients instruct a solicitor at the point where they feel the marriage is definitely at an end and there is no alternative but to divorce. Many couples will have already tried to reconcile their differences, having spoken to friends and family, maybe attended Relate. It can come as a shock to clients to be told that having reached the difficult decision to end the marriage that they cannot simply say that they are unhappy in a marriage and start a divorce immediately.
Some clients have seen media coverage regarding no fault divorce and believe that this is now available. Whilst it is true that in 2015 Richard Bacon, a conservative MP, introduced a Private Members Bill proposing no fault divorce, the Bill failed to get a second reading. To start a divorce immediately one party must still blame the other party for the breakdown.
Under S1 (1) Matrimonial Causes Act 1973 there is only one ground for a divorce; that is a marriage has irretrievably broken down and 5 facts upon which a party can rely:
- Adultery
- Unreasonable behaviour; that is to say that the other party has acted in such a way that you cannot reasonably be expected to live with them
- Two years desertion
- Two years separation with consent
- Five year separation without consent
Occasionally clients do want to be able to set out the reasons for the divorce, as they may feel strongly that the other parties’ behaviour has led to the breakdown. But many do not understand why they have to blame their spouse, and worry who will know about the details in the divorce petition and the impact on children.
If a client cannot, or does not want to, start a divorce immediately, the alternative is to wait for the periods of separation with or without consent. However having to wait to start a divorce can lead to uncertainty in arrangements between parties, particularly regarding financial matters. If an agreement regarding the finances can be reached, advice will be given to enter into a Deed of Separation. However when the divorce is commenced, the terms of the Deed have to be incorporated into a Consent Order, which leads to duplication of work and increased costs.
Members of Resolution, the national association of family lawyers dedicated to applying a non-contentious and constructive approach to family disputes, support the campaign for no fault divorce. Members subscribe to a code of conduct to deal with family matters in a way to reduce and manage conflict. Resolution members follow the Family Law Protocol when issuing a divorce on the grounds of unreasonable behaviour so will draft the particulars in such a way as not to cause or increase animosity whilst still fulfilling the requirements of the legislation to obtain a divorce. The petition is forwarded to the other party to consider before being issued in court to try to avoid costly contested proceedings.
Family lawyers were concerned by the outcome of the case of Tini Owens and Hugh Owens (Owens v Owens 2017 EWCA 182) a case where the parties married in 1978 and separated in 2015. Mrs Owens alleged the marriage had broken down due to Mr Owens unreasonable behaviour. Mr Owens defended. Judge Robin Toulson QC refused to grant the divorce saying that Mrs Owens allegations were “minor altercations” of the kind to be expected in a marriage.
Mrs Owens appealed to the Court of Appeal but the appeal was refused. Sir James Mumby, President of the Family Court in England and Wales upholding the ruling stated that Judge Toulson had correctly concluded that the marriage had not “in law” irretrievably broken down.
This leads family lawyers not only having to advise clients that they cannot issue a divorce on a no fault basis but given the ruling in Owens and Owens it is important that the particulars of behaviour are drafted in such a way that if defended they will be strong enough to be upheld and a divorce granted.
Mrs Owens has now been given permission to appeal to the Supreme Court and Resolution is to apply as an Intervener in the case. The decision is eagerly awaited by matrimonial solicitors.
The Owen’s case shows how important it is to take advice from a specialist family lawyer like myself to guide and advise you.
Amy Walklate