Sarah Evans says it is time to revamp our stagnant divorce laws

Early January is the most common time for people to start divorce proceedings. Sarah Evans of Coodes Solicitor debunks some of the common myths around ending a marriage and says it is time to revamp our stagnant divorce laws, which often create unnecessary conflict and do not reflect the reality of most relationships.

New Year is a time when many of us focus on making a fresh start. Perhaps it is that, combined with the aftermath of the pressures of Christmas, which makes this the time for so many people to start divorce proceedings. In my experience, very few are aware of the legal requirements for a divorce to be approved and are unprepared for what is to come.

Our divorce laws are predominantly based on blame. Save for cases involving a lengthy period of separation, it is not possible for a divorce to be approved without the person who starts proceedings, ‘the petitioner’, stating reasons why the behaviour of their spouse, ‘the respondent’, has caused the marriage to break down. In other words, even if the couple has very amicably agreed to go their separate ways, one of them legally must be at fault.

I regularly advise clients who are totally unaware that this is the case. Many come to my office asking for a divorce based on ‘irreconcilable differences’. Like other mythical phrases such as ‘common law marriage’ or ‘full custody of the children’, these have no legal basis but seem to have entered the psyche of our society. I often see films or television dramas fuelling the myths by misrepresenting divorce laws. For example, many people believe they will be entitled to a significantly larger share of the finances if their spouse has had an affair: this is simply not true.

To start divorce proceedings, the petitioner needs to establish that the marriage has irretrievably broken down based on one of the following five reasons: adultery, desertion, separation for two years (though this needs to be consented to by the respondent), separation for five years or unreasonable behaviour.

Most couples want to divorce because their marriage is no longer working. They have fallen out of love or their lives have gone in different directions. In these cases, none of these five categories is a good fit and the only option is to cite ‘unreasonable behaviour’. The petitioner then needs to set down a case based, for example, on their spouse not helping with the housework or prioritising their career over the family. The aim is to support these couples to separate amicably but the current law is not conducive to this because one party is forced to find fault with the other.

It is very important to avoid creating unnecessary conflict between spouses by including reams of personal and potentially hurtful comments in a divorce petition. I always send a draft to the respondent for their approval before it goes to the court in order to try and agree any allegations beforehand so they do not come as a nasty surprise. Spiteful comments are more likely to make proceedings drag on, which is more expensive and stressful for both parties. Hostile exchanges around the divorce petition do not create a good foundation for arrangements following the divorce and we sadly sometimes see people trying to ‘score points’ when they are dealing with finances, property or arrangements for children. Giving couples the option of a ‘no fault’ divorce would promote cooperation and avoid some of these damaging outcomes, which can affect the whole family.

There are of course exceptions. Sometimes there has been violence, sexual abuse or serious financial misconduct within the marriage. In these situations, it is entirely appropriate for a divorce petition to be based on the unreasonable behaviour of one spouse. There is no ‘one size fits all’ approach so changing the law to give couples the option to choose between a ‘no fault’ divorce or the existing ‘fault based’ options should cover all eventualities.

Some people argue that we should make getting a divorce as easy as registering a birth or death. Not only could this be seen as devaluing marriage, it would also leave people vulnerable. Registrars could not be expected to advise on the other legal aspects around a divorce – dealing with finances, protection from violence or arrangements for children. Ending a marriage will always be a serious and sometimes complex matter and our legal process should reflect this.

Over the years there have been calls for a ‘no fault’ divorce option, but there is no sign of this happening. At Coodes we are committed to helping our clients approach divorce as amicably as possible and consider that we need to change our acrimonious and adversarial divorce laws, so we can best support people through the sad and difficult decision to end their marriage.

Sarah Evans of Coodes Solicitors is a member of the Law Society’s Family Law Advanced Panel and has a particular interest in divorce, financial disputes, domestic abuse issues and children matters.