It’s not me, it’s you: finding fault in divorce

It’s not me, it’s you:  finding fault in divorce proceedings

Many will have heard the phrase “irreconcilable differences” used as the reason for divorcing Hollywood celebrities.  However,  this is not an option for spouses wanting to end their marriage in England and Wales.

There is in fact only one ground for divorce in this jurisdiction:  that is that the marriage has irretrievably broken down.  A party wishing to divorce has to use one of the following five facts to demonstrate this:

• the Respondent has committed adultery;

• the Respondent has behaved in such a way that the Petitioner cannot reasonably be expected to live with them;

• the Respondent has deserted the petitioner for a continuous period of a least two years;

• the parties to the marriage have lived separate and apart for a continuous period of at least two years and the respondent consents to the divorce; or

• the parties have lived apart for at least 5 years.

Whilst there is an option for a “no-fault divorce” based on separation of at least 2 years with consent, this is often far from an ideal option as parties often want to move on with their lives and avoid living in uncertainty.  There can also be important reasons to proceed more quickly if, for instance waiting would result in assets being diminished or hidden.  There is also of course no guarantee that the other party would provide their consent.

If the Respondent does not consent to the divorce, then they are able to “defend” issued proceedings but this tends to be an extremely rare step given that the costs involved can be very ghi of such proceedings are very high and the outcome is either that there will ultimately be a divorce or that parties will be effectively locked in a relationship that one of them does not want to be in.

In recent years the court has tended to take a pragmatic view and has not looked to stand in the way of parties wishing to end their marriage.  It has therefore been possible for petitioners citing unreasonable behaviour to use relatively minor instances of behaviour to support their case.  Indeed, many solicitors advise that it is better to avoid particulars that are likely to inflame what may already be a hostile situation given that particulars within the petition will usually have no impact upon the arrangements to be made in relation to their finances or children.  However, a recent case in the court of appeal has brought the issue of fault within divorce proceedings back into focus.

Tini Owens petitioned her Husband on the basis of her husband’s behaviour citing reasons such as him berating her in front of the their housekeeper and refusing to speak to her over a meal. She said that she had come to the conclusion that her marriage was “loveless”. They had lived together for almost 40 years but relations had become difficult and Ms Owens decided to leave the family home in 2013.  Her Husband decided to defend the divorce proceedings saying that they were “minor altercations” which were “to be expected in a marriage”.  The court at the first instance held that the particulars cited were “flimsy” and “exaggerated” and held therefore they were not sufficient to merit a divorce.  Ms Owens has now requested that the Court of Appeal overturn this decision and the outcome of her appeal is now awaited.

In the face of these proceedings, many within the legal profession have again called for the introduction of no fault divorces.  However, there are no pending plans to introduce this change and the current regime is therefore likely to remain in place for the foreseeable future.  Parties should therefore seek legal advice from an early stage if they (or their spouse) wish to proceed with separation and/or a divorce in order to protect their position.