A recent report published by The Nuffield Foundation (The Report) looked at why defended divorce occurs, and how the court treats them.
The majority of defences arise from quarrels about who is “at fault”. The current divorce law stems from The Matrimonial Causes Act 1973. In the early 1970s it was not unusual for barristers to spend days at court examining the behaviour of the spouses to the marriage and it was hoped that “the quicky divorce” would put an end to that with a streamlined procedure which enabled district judges to deal with applications without hearings where possible.
Although the single ground for a divorce is the irretrievable breakdown of the marriage, the court still requires evidence based on one or more of five facts namely:
(a) that the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent;
(b) that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent;
(c) that the respondent has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petition;
(d) that the parties to the marriage have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition (referred to as “two years’ separation”) and the respondent consents to a decree being granted;
(e) that the parties to the marriage have lived apart for a continuous period of at least five years immediately preceding the presentation of the petition (referred to as “five years’ separation”).
On a dissolution of a civil partnership, the evidence is based on the same facts with the exception of (a).
Previous attempts to legislate for “no fault divorce” have been unsuccessful.
It comes as a surprise to some people that after a period of separation but whilst still married, having a sexual relationship with someone of the opposite sex is still adultery in fact (a). A code of practice which was long ago established by the Solicitors Family Law Association, Resolution, discourages the naming of the “other party” in these cases as all the court requires is evidence of the respondent’s adultery and no one else need be involved.
However it will come as no surprise that The Report identified that the emotional and financial cost and the clear discouragement of the family justice system means that defending a divorce is not a viable option for most people. It concludes that the law is generating disputes and failing to remedy them.
The Report was following an earlier set of findings in 2017 by the same research team that concluded that the law incentivised people to exaggerate claims of unreasonable behaviour or adultery to get a quicker divorce.
The findings showed that most people defending divorces were in any case not trying to stop the divorce from happening but rather they wanted to have their say as to why the marriage had failed.
Last year there was high profile case called Owens and Owens where a husband denied that he had behaved unreasonably. The court found that the wife had been “scraping the barrel” to make allegations and refused the decree. At the end of July 2018 the Supreme Court ruled, following a hearing in May, in the husband’s favour. This means that the wife must wait for the period of five years’ separation before she can apply once more for a divorce as then she will not require her husband’s consent to proceed. This may yet prove to be a long-awaited catalyst for urgent law reform.
In a mediation process it is often seen that the very need for one party to make allegations against the other is damaging. In finance and property disputes couples may be keen to have their settlements made legally binding by the making of a consent order without waiting two years from the date of separation, and without making spurious allegations against each other. Reform of the law would make a great difference to them.
The Report recommends that a system of divorce should be available where one or both parties register that the marriage has broken down irretrievably and that intention is confirmed by one or both parties after a minimum period of at least six months. There would be no need for a defence in such a system. Let’s hope that the reform comes sooner rather than later.
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