The current divorce law dates back to 1973 and allows parties to get divorced on the ground that there has been an irretrievable breakdown of the marriage and provided that they can prove one of the following facts:
- Adultery – one party being unfaithful with a member of the opposite sex in a marriage.
- Unreasonable Behaviour
- 2 years separation with consent of both parties
- 5 years separation without the consent of the respondent
This has led to many couples being forced to blame a party for the breakdown of the relationship, making it one party’s fault. The behaviour or adultery is unlikely to have an effect on the financial settlement (unless it would be unconscionable to disregard that conduct), and only seeks to heighten any animosity, as the Petitioner will want to be seen as being right and the Respondent will want to defend themselves. Alternatively, you may have a situation where the parties come to an agreement about who will make the allegations and what they will be.
Often the animosity created by the divorce petition can lead a party to be more litigious in financial proceedings as they do not want to give in or “lose” to their spouse who has been hostile in the main suit divorce.
If parties do not want to blame the other, then they must instead wait 2 years to be able to separate (provided that there is consent given by each party). This in itself can cause difficulties in relation to the division of finances. For example, it may mean parties are trapped living together as they cannot agree on the division of equity or terms for the sale of the former matrimonial home and cannot issue financial proceedings to assist as no application for divorce has been made.
Further, waiting to resolve financial matters can complicate the division of all assets, as arguments regarding assets acquired post-separation may become relevant. Alternatively, in the event an agreement can be reached out of Court, double legal costs may be incurred as the parties choose to enter into a Separation Agreement, with their only option being to revisit this at the time of the divorce to lift the terms of the Agreement into a binding Court Order. It may be the case that an entirely new agreement must be reached, as terms that may have been agreed at the time of separation may no longer be deemed fair and reasonable by the Court several years later. The Court has the discretion as to whether they choose to include such terms in the final Order.
What is the solution? Is a no-fault divorce the way forward? This is heavily supported by resolution and family law professionals; however, religious groups oppose this and there has been a long-standing public policy to protect the sanctity of marriage. It is questionable whether forcing parties to make allegations against one another or remain married for two years achieves this aim.
There is a case, that is well publicised and has just been heard at the supreme Court (Owens v Owens), regarding a defended divorce. The Wife has petitioned on unreasonable behaviour (27 allegations) which the Husband has defended. The Court’s have taken the view that the allegations are “of the kind to be expected in marriage” and that in law, the marriage has not broken down. If the Husband successfully defends the Wife’s appeal she will have no option but to remain married to him until they have been separated for 5 years (2020).
Can it be right that the Wife (or Husband) is trapped in a loveless marriage for this length of time at the mercy of the other spouse? Is there another way to ensure both parties reflect before issuing a divorce petition? A final decision in the Owens case is awaited and will likely impact on whether the law is changed, or the status quo is maintained. In the meantime, the discussion continues.
Samantha Jago – rhw Solicitors LLP
Call rhw family lawyers on 01483 302000 or email firstname.lastname@example.org