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When will we see an end to fault based divorce?

From 17 May 2018, the Supreme Court will consider the contents of an unreasonable behaviour petition issued by a 68-year-old wife against her eighty year-old husband.

The couple married in 1978 and have two adult children.  The wife left the marital home in February 2015 and issued a divorce petition on the grounds of her husband’s unreasonable behaviour. The husband defended the divorce and denied the marriage had irretrievably broken down.  The wife amended the divorce petition to give further details of each of 27 allegations.

When the matter was heard by the court the judge stated that the evidence was at best flimsy, and the facts raised by the wife were minor altercations, of a kind “to be expected in a marriage”.  In conclusion, he found the husband’s behaviour was not unreasonable. The case went to the Court of Appeal who agreed with the original decision. The case is now going to the Supreme Court.

In an age where legal groups, the public and some members of parliament are urging solicitors to deal with divorce in an amicable way, this case flies in the face of that wish.  Unfortunately, governments have not found the time or the political will to bring the law in line with reality. Other countries such as Australia and New Zealand have, many years ago, changed their law to allow ‘no fault’ divorce.

The current position

The position in England and Wales remains that divorce is fault based and allegations must be sufficient to get through the court. This means that parties have to make sure that allegations within the divorce petition are properly drafted and of sufficient gravity to constitute unreasonable behaviour.  Of course, things always look worse when set out in black-and-white, so this often causes the other party to react adversely to a strongly worded divorce petition.

For many years solicitors have tried to make a divorce petition sufficient to get through court but without causing the other party to react negatively to the case moving forward.  Solicitors realise that in the longer term it is much better for all concerned if they can move on with their lives in an amicable way – particularly if there are children involved.

Statements of good practice by family law national body, Resolution, and The Law Society, whilst always careful to say that legal requirements must be met, encourage allegations to be kept to the bare minimum.

Looking ahead

The decision is still awaited but it seems likely that the Supreme Court will agree with the lower courts on this legal point. This will mean if a party wants to petition on the grounds of unreasonable behaviour, the divorce particulars will need to be sufficiently detailed and graphic to ensure the divorce is allowed to proceed by the court.

I believe it is imperative that divorce law is reformed as soon as possible to ensure that legislation is finally brought into the 21st century!

Meanwhile, this situation highlights the importance of seeking specialist, expert advice from a family lawyer for anyone considering divorce.

Family and Divorce - Partner - Helen Lucking