Should we bring in “no fault divorce”

Two weeks ago I entered into a debate following on from the comments made by Sir Nicholas Wall, Head of the Family Division and Lord Justice Thorpe, that grounds for divorce are now outmoded and should be abolished. What became very clear from this debate commencing by my writing an article in the Times was that most people who are undergoing divorce believe that the system of having grounds for this divorce in this day and age is from an era past, which should have no place in current divorce laws.

So what happens now?

Most people who come in enquiring about divorce proceedings believe that we already have irreconcilable differences as the basis for divorce in this country. This is as a result of them watching far too much American television. We do not have irreconcilable differences here, this is an entity that takes place in America, Europe and most of the world but at present does not exist in English law. At present we have to show grounds for divorce namely that the marriage has irretrievably broken down based on one or more facts. They are using the technical terms:-

1.That the Respondent has committed adultery and the Petitioner finds it intolerable to live with the Respondent.

2.That the Respondent has behaved in such a way that the Petitioner cannot reasonably be expected to live with the Respondent.

3.That the Respondent has deserted the Petitioner for a continuous period of at two years immediately preceding the presentation of the Petition.

4.The parties to the marriage have lived apart for a continuous period of at least two years immediately preceding the presentation of the Petition and the Respondent consents to a decree being granted.

5.The parties to the marriage have lived apart for a continuous period of at least five years immediately preceding the presentation of the Petition.

In relation to a Petition for adultery, the Courts have issued recent directives that they do not like the Petitioner to name the Co-Respondent as it means that they have to be served with the Petition. This leads to much frustration amongst the parties who say well ?if I?m expected to use a specific ground for divorce, why is the Court then preventing me from naming the person with whom my husband or wife is having an affair?. The reason is that the Courts themselves have moved on but the law has not kept up with it.

Unreasonable behaviour. In the Article that I wrote for the Times newspaper, I emphasized the more ridiculous grounds for divorce that have been seen in divorce petitions over the years. I set out below some of the examples that people have put into unreasonable behaviour petitions in order to obtain a divorce. From just a cursory reading of these examples, it can be seen that the mere raising of these allegations can cause much discernment in the person receiving the divorce petition and lead to acrimony that spirals the parties entirely out of control. Accordingly it is my view that it is high time that these kind of petitions are eliminated from the process.

In practice, if you are relying on unreasonable behaviour you have to serve a draft of the Particulars that you want to rely on, on the other side beforehand under what is known as the Law Society Protocol. The idea is so that both sides can agree to avoid a contested divorce. Many do agree. However, sometimes the mere serving of such a Petition however anodyne you might believe it to be, can trigger huge emotional distress on the other party. Often sex or lack of it or bodily functions form a huge part of a divorce petition, lack of emotional support, lack of sufficient support with the children are also elements that are often found in these Petitions.

Examples of the more extreme unreasonable behaviour

“The Respondent husband suffers from excessive and embarrassing body odour which the wife finds to be unacceptable to the extent that she has no wish to have sexual relations with him”.

“The Respondent failed throughout the marriage to help with any household chores treating the Petitioner as if she were a complete drudge”.

“The Respondent without just cause refused to speak to the Petitioner?s mother (his mother in law) to the absolute distress of the Petitioner”.

“The Respondent withdrew intimate marital relations from the Petitioner for a period in excess of five years”.

“The Respondent husband repeatedly took charge of the remote television controller, endlessly flicking through television channels and failing to stop at any channel requested by the Petitioner, further compounding her distress by claiming justification for his behaviour that it was a man thing”.

“The Respondent on occasions too frequent to particularise each expelled flatulence in lifts, cars and other enclosed spaces which the Petitioner felt to be repugnant”.

“The Respondent?s refusal to modify his diet in any form was in total disregard for the Petitioner?s natural feelings of abhorrence”.

“The Respondent wife would without justification flirt with any builder or tradesman, inappropriately touching them and declaring that she could not stop herself”.

“The Respondent husband unreasonably demanded sex every night from the Petitioner which is causing friction between the parties”.

“The Respondent insisted that his pet tarantula Timmy sleep in a glass case next to the matrimonial bed. Despite her request that Timmy sleep elsewhere, the Respondent unreasonably refused”.

“The Respondent refused to speak to the Petitioner wife for a period in excess of fifteen years, communicating only by postix note”.

“The Respondent with malicious intent repeatedly made tuna casseroles for the Petitioner husband in the full knowledge and belief that the Respondent detested eating tuna”.

“The Respondent husband would speak only in cling on in the matrimonial home expecting the Petitioner and children to learn the language and dress accordingly. The Petitioner found such requests upsetting and unreasonable particularly when the children?s friends were visiting”.

What should happen?

It is my view and that of many practitioners that we should introduce the concept of the marriage having broken down based on irreconcilable differences. This means that no specific fault will have to be found on either side and both parties can simply agree that the marriage is not working any more. Since this happens throughout most of the world, it is not beyond the intelligence of the British to introduce it here? So why is there so much opposition?

The truth is, that many governments have tied themselves into knots over the whole issue of whether they should or should not support the family. Whatever route they seem to go they face criticism. Labour supported the one parent family were accused of undermining society, marriage and the greater good. When the conservatives tried to introduce the concept of getting back to basics, they were pillared. At present the coalition is supporting marriage and therefore anything that suggests an undermining of the institution of marriage has to be opposed. Accordingly many of the religious body in Parliament are saying that anything that they perceive that makes divorce easier, should be rejected. Many of those that support marriage come out with the erroneous view that to support no fault divorce would be to encourage divorce itself.

I could not disagree more. When two people have formed the view that they want to divorce, they are not going to rush to the divorce courts because there is no fault divorce. They would have come to this view after considering the matter but the issue of fault being in the divorce process makes the whole process painful, difficult and unnecessary.

Whilst in practice there are only a handful of defended cases that actually get to the Courts, nevertheless many lawyers find themselves arguing in the first instance about the contents of a Petition. This adds to costs and misery when it is wholly and completely unnecessary that it should do so. It is now high time for change and those believe that they are assisting couples by opposing this are only furthering misery and unhappiness.

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