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Making the best of fault based divorce law


There have recently been an increasing number of calls for a reform of the law relating to divorce. The current law requires that in order to prove that a marriage has broken down irretrievably, the party who is instigating the divorce (the "Petitioner") must prove 1 of 5 facts, namely:

Therefore, if parties wish for there to be a divorce and do not wish to wait for a period of 2 years before doing so, they have no option but for one of them to petition the other either on the basis of their adultery, or on unreasonable behaviour, both of which require an element of fault to be proven.

Whilst in some cases there will of course have been adultery and or behaviour that would be considered to be unreasonable, in many cases the parties simply no longer wish to be married, for whatever reason - they have fallen out of love, grown apart etc. It is in these cases that things can become difficult, because the Petitioner will need to cite in their divorce petition examples of the Respondent's alleged behaviour, which will need to be strong enough to persuade the court that a divorce should be granted. If in reality the Respondent has not behaved so terribly, the Petitioner will inevitably need to exaggerate things in their divorce petition, just so that it can get through the courts, unless they wish to wait for 2 years from separation. Even in cases where there has been what would be seen as unreasonable behaviour in reality, the current requirement to detail this in the divorce petition can very often lead to increased animosity between the parties, something which we as family lawyers should always try to avoid.

Whilst we will always explain to clients who find themselves on the receiving end of an unreasonable behaviour petition that this is the only way that a divorce can be granted in less than 2 years, it can still be very difficult for them to have the ins and outs of their marriage written down on paper, just so that a judge can allow the divorce to proceed. Wherever possible, we will always try to agree the contents of the petition with the other party or their solicitor prior to it being issued at court, so that at least both parties are comfortable with what is being said. It can still be very difficult for clients to deal with though, and in many cases this can lead to a divorce being much more acrimonious that it necessarily should be.

There has long been talk both in the press and in parliament about the need to reform the law in relation to divorce, and it is a debate that continues to rage. However, until there is any such reform, divorcing couples and their solicitors will need to work with the law as best they can, and wherever possible try to avoid or at least limit the animosity that can be caused by fault based divorces. I and my colleagues in the family team are all members of Resolution, a national group of family lawyers who are committed to a code of practice that requires us to deal with cases constructively and non-confrontationally, with a view to reducing the scope for conflict between parties wherever possible. If you would like to discuss any aspect of family law please do not hesitate to get in touch on 0113 222 3241.

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