Elise Alma, Partner and Head of the Family Team at Coodes Solicitors says pressure is mounting for the Government to give couples the right to a no fault divorce.
On 25th July the Supreme Court refused Tini Owens’ appeal for the right to divorce her husband of 40 years. Mrs Owens describes herself as being in a ‘loveless and desperately unhappy’ relationship. However, she remains married because her 80-year-old husband has refused to agree to a divorce.
There are around 107,000 divorces in the UK each year. Anyone who wants to divorce or end a civil partnership has to establish the relationship has irretrievably broken down, either by spending a minimum of two years separated or starting proceedings on the basis of adultery or unreasonable behaviour. In other words, someone must be to blame. The criteria does not fit well with the situation that many couples find themselves in: they have just drifted apart, or feel they are not compatible. Many of my clients have simply come to the realisation that they cannot continue to live with their spouse because they want different things out of life.
It is no surprise that ‘unreasonable behaviour’ is the most commonly used ground for a divorce. After all, it is the easiest category in which to fit any faults that someone might find with a spouse. Commonly used examples of ‘unreasonable behaviour’ in divorce petitions are lack of physical affection, insulting or irrational behaviours, financial differences or putting work before marriage. The law currently forces people into the uncomfortable positon of finding such faults, then discussing intimate details of their relationship with a lawyer.
Tini Owens’ case has put the divorce process under the spotlight. Resolution, the national organisation representing family lawyers in the UK, has stepped up its long-term campaign for the law to be changed to allow a no fault divorce. The campaign is gathering momentum, with the latest Government figures suggesting that 69 per cent of people now agree that no fault divorce should be available to separating couples.
As a family lawyer, I tread a difficult line between putting forward a sufficiently strong case for a divorce, while avoiding my client making unnecessary and unpleasant allegations against the other party. My aim is to help my client get the outcome they need in the manner that will cause the least distress. Once parties become entrenched in their negative views about one another divorce proceedings can turn into a battleground. However, if all parties work constructively together, it is entirely possible to have a ‘good’ divorce, as I have explained in a previous blog.
Many people simply want to end their marriage but do not harbour any ill feeling towards the person they’ve grown apart from. A no fault divorce would suit the majority of my clients for that very reason. I often have to press clients to divulge personal details to enable me to establish there has been ‘unreasonable behaviour’ for the divorce petition which they understandably find very difficult. When appropriate, I also advise them against making allegations that are likely to cause unnecessary pain and lead to future conflict.
A divorce becomes far more difficult when children are involved. Lawyers and the courts constantly remind parents to put their children first. However, the current divorce laws do not fit well with that philosophy. It is very painful for a child to see one parent find fault with the other. A divorce that is established on apportioning blame is not a good basis for future cooperation between parents.
Of course not all separations are amicable. Some marriages end as the result of adultery and, sadly, domestic abuse is a daily reality for many people. However, even in these cases lawyers sometimes leave out details from the divorce petition, if we feel the allegations could prevent the other spouse from signing the papers. The Owens case demonstrates that current divorce law makes it possible for someone to continue their unreasonable behaviour by denying their spouse the opportunity to move on with their life.
Although support for no fault divorce is growing, some argue that making it easier to end a marriage will result in more families breaking down. A sensible approach would be to include a ‘cooling off’ period in the divorce process. Resolution has proposed a system whereby one or both spouses give notice on their marriage and the divorce would be finalised, should they still want to proceed, after six months.
I am among the majority of people who support the introduction of no fault divorce. It does not make sense for anyone to have to make allegations against their spouse when they are clearly in an unhappy marriage that they need to get out of. The current law means that people who are in the situation that Mrs Owens finds herself in are denied the opportunity to resolve financial issues and move on with their life. It also sets an unnecessarily adversarial tone to divorce, which can be damaging not only to the couple but to their children and extended family.