Can divorce be amicable?
At Townsend Family Law, we are firm believers in encouraging separating couples to be amicable towards one another. In our experience, this not only makes the separation process smoother but also reduces the emotional and financial strain of litigation.
The Law Society recommends that family lawyers approach cases in a non-confrontational and constructive way and to encourage their client’s to do the same. At Townsends, in our experience the most costly cases can be those where clients cannot put aside angry and hurt feelings to concentrate on the real issues.
Our current Divorce law is often said to fly in the face of this guidance. Two of the five facts on which a divorce must be based involves blaming an ex partner for the irretrievable breakdown of the marriage and this can lead to increased hostility between parties and in turn increases the risk of a defended divorce. Our divorce law which has been in place since 1973 is badly in need of reform.
The fault based facts are:-
- that the Respondent has behaved in such a way that the Petitioner cannot reasonably be expected to live with the Respondent, or
- the Respondent has committed adultery and as a result the Petitioner finds it intolerable to live with the Respondent.
So why are defended divorces in the news?
This is down to Mr and Mrs Owens married for 40 years. When Mrs Owens decided to divorce her husband she was advised by her lawyers (in line with Law Society guidance) to keep her allegations of unreasonable behaviour brief and mild so as not to upset Mr Owens when he got the divorce papers. Mrs Owens complained that Mr Owens could be moody and he was not very good at showing her love and affection. Mr Owens objected to the allegations and he decided to defend the divorce. At first instance the Judge rejected the allegations on the basis that they were too mild and did not, in the Judge’s mind satisfy the legal test that Mrs Owens could not be reasonably expected to live with Mr Owens. The judge found the allegations to be a “at best flimsy”.
Mrs Owens appealed the decision but the Court of Appeal agreed with the decision of the first Judge and dismissed Mrs Owen’s appeal. The Court of Appeal summarised the position blending objective and subjective elements. The question for the Judge is whether any reasonable person would find that the behaviour relied on by a spouse would make it intolerable to live with their other half and to decide that a Judge must look at the history of the marriage and the circumstances of that case. The Court of Appeal agreed that Mrs Owens allegations of unreasonable behaviour were not enough to allow the Court to bring the marriage to an end.
Mrs Owens then appealed to the Supreme Court, the highest Court in the land, who agreed with the decision of the lower courts and Mrs Owens lost again. The Court concluded that the one day allowed was not long enough to hear evidence from Mr and Mrs Owens on the allegations. The Court had given Mrs Owen permission to elaborate on her allegations. She relied on 27 allegations in the end but the one day allowed was not found to be enough to hear evidence. Mrs Owens had to limit her allegations to fit into the one day court timetable. The Court found that on the allegations she chose to rely on they were not enough to give her a divorce.
What does this mean for divorcing couples?
If there is a risk of your divorce being defended, the Court has made it clear that under the current legislation, examples of behaviour should be more detailed and must satisfy the test of whether the reasonable man or woman in the street would agree that the behaviour was so unreasonable that a person could not be reasonably expected to live with a spouse.
The decision will no doubt evoke passionate responses from practitioners used to drafting petitions in an effort to reduce the heat and promote compromise between their respective clients.
This result leaves Mrs Owen trapped in an unhappy marriage and she now must wait until 2020 to divorce on the basis of five years separation. It means poor Mrs Owen is stopped from settling her financial affairs because her divorce has been dismissed. There can be no court approved or ordered financial settlement without divorce proceedings. This decision is despite pleas by Mrs Owens that the current state of the law is out of touch with changing social values.
Both the Court of Appeal and the Supreme Court referred to the need for parliament to reconsider the legislation, however it is unlikely that this step will happen for some time. It is hoped that the law will be reviewed so that the conciliatory approach can be adopted consistently by family law practitioners.
However, we need to put Mrs Owen’s case into perspective. Defended cases a rare these days because they are expensive and they take too long. Mr and Mrs Owens are wealthy and had the means to litigate. Most separating couples would rather save their money to negotiate a financial settlement and most divorce go through without a hitch especially if draft petitions are released in advance of being issued to help the particulars of the divorce being agreed in advance.
Townsend Family Law are able to provide services tailored to your budget. Should you require assistance please telephone us on 01992 892214.