23 September 2019 - Article
Wrongly or rightly, getting a divorce in England & Wales is essentially a form filling exercise. (Sorting out the finances and any matters relating to children is often a different story…) Providing: (a) you have been married for at least one year; (b) the Court has jurisdiction (and there are no competing jurisdiction issues); © the ground of divorce has been established; and (d) the divorce is not being defended (and they seldom are), the Court will grant the divorce. The sole ground for divorce is irretrievable breakdown of the marriage, but it has to be proven on one of five ‘facts': (1) The Respondent has committed adultery; (2) The Respondent has behaved in such a way that the Petitioner cannot reasonably be expected to live with him/her; (3) There has been two years separation and the Respondent consents to the divorce; (4) There has been five years separation (no need for the Respondent to consent); or (5) The Respondent has deserted the Petitioner for two years or more (this fact is rarely used as it is difficult to prove intention to desert and you can more easily use the ‘unreasonable behaviour' fact). The most common fact is (2) above, ‘unreasonable behaviour'. To satisfy the Court that this fact is established, the Petitioner must provide some examples of the behaviour. In every marriage, each party would be able to provide sufficient examples of their spouse's ‘unreasonable behaviour' to be able to satisfy the Court. The allegations do not have to be serious in nature, such as violence or abuse, they can be as mild as ‘not showing any affection to the Petitioner', ‘being untidy and unclean‘, ‘refusing to communicate with the Petitioner', or ‘not making the Petitioner feel loved'. The Court tends to take a pragmatic view and appreciates that if one party has concluded that the other person's behaviour is such that they want to proceed with a divorce, then it would be futile to question whether the marriage has irretrievably broken down and try to prevent the divorce. Why then, must the finger be pointed and allegations be set out, or indeed, why should you have to prove one of the five facts at all? Why should the Court not just trust and respect the adult Petitioner's decision that the marriage has irretrievably broken down and proceed with the divorce? It would avoid unnecessary (often additional) contention between the parties at such a difficult and emotional time, and that in turn may lead to a more amicable approach to resolving the finances and any matters relating to the children. President of the Family Division, Sir James Munby, is of this opinion. He recently expressed his view that divorce should be ‘no fault' based and therefore capable of being handled by a registrar (and not the Court) in an administrative manner. This is not the first time that ‘no fault' divorce has been mooted. John Major's Conservative government introduced the idea of a ‘no fault' divorce for couples that had taken part in a compulsory ‘information meeting'. The meeting was intended to help couples either save their marriage or end it with minimum distress and acrimony. Tony Blair's government however, scrapped that idea after research concluded that the information meetings were not effective. Is there still scope for removing the necessity of pointing the finger and, as Sir James puts it, “bring some intellectual honesty to the system”. If so, you would inevitably query the need for the Court's involvement in an undefended divorce, especially at a time when the Court system is under severe pressure and is desperately trying to cut back and adapt wherever possible. Some may say that an administrative ‘no fault' divorce process would undermine the sanctity of marriage and lead to an increase in divorces. That might be true in principle, but isn't the reality that an administrative process already exists in practice?