It’s not me, it’s you! Should it matter who is to blame when a marriage breaks down?
The family law community has reacted with shock to a recent Court of Appeal judgement upholding an earlier court decision that refused to grant Mrs Owens a divorce despite a hostile and protracted court case.
The highly unusual case involving a multimillionaire mushroom farmer and his wife centred around Mrs Owens’ claim that her husband had behaved unreasonably. Mr Owens defended the divorce petition, arguing that he was still hopeful for reconciliation, and the appeal court judge ruled the proceedings had not proved him to have behaved unreasonably.
Family law in England and Wales is beginning to look very outdated: unless a separating couple agrees to wait two years or more to finalise their divorce, the courts require one party to assume blame for the relationship breakdown. In practice, however, courts are rarely required to determine whether allegations of adultery or unreasonable behaviour can be proved – most divorce respondents do not seek to defend the proceedings thereby denying their spouse the divorce they desire – and as an experienced family lawyer, I usually encounter a fair amount of co-operation amongst solicitors and clients. For the most part, everyone involved works hard to facilitate an agreed settlement even if the official reasons given for requesting a divorce are not the real cause of the breakdown and, in some cases, not even factually correct.
In light of Mrs Owens’ unsuccessful appeal, however, research published by the Nuffield Foundation into how current divorce laws work makes interesting reading. In her interim report, Professor Liz Trinder, from the University of Exeter’s law school, reports that most divorces are fault-based and that this approach sometimes results in proceedings taking as little time as three months. Her work confirms that many divorce petitions are not necessarily accurate records of what or who caused the breakdown of the marriage, rather they are often based on compromise statements designed to minimise conflict and upset and, in some cases, reflect an unashamedly blinkered perspective of what went wrong with the marriage. The Nuffield findings go on to observe that courts take petitions at face value and cannot currently test whether their allegations are true or not unless respondents file a formal reply and pay a fee to defend the petition, while very few petitions are rejected on substantive legal grounds whether or not they are deemed to be true.
Professor Trinder accepts that, in reality, our system already provides divorce by consent or on demand, albeit masked by an often painful and sometimes destructive legal ritual.
But she also concludes that by apportioning blame our current system of establishing fault can create or exacerbate conflict and this is likely to disrupt negotiations about children or finances, areas where the law expects the divorcing parties to work constructively together. Professor Trinder’s research so far has failed to find evidence that our current law protects marriage, and she concludes that divorce law reform is long overdue – a single system of notification of intent to divorce would be clearer, often more honest and, initially at least, neutral.
Only time will tell if, following the Owens case, undefended petitions come under closer scrutiny or indeed whether lawyers feel compelled in future to recite long and detailed examples of behaviour in a bid to guard against a respondent’s defence. Either way, Professor Trinder’s research on behalf of the Nuffield Foundation seems to support calls from the family lawyers’ organisation Resolution for the introduction of no-fault divorce in the courts of England and Wales.
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