Can divorce be obtained amicably?

13 November 2019

A spouse seeking a divorce without having to place blame on the other party, can only do so if they’ve been separated for a continuous period of at least two years and their spouse consents. Alternatively, a spouse has to rely on either their spouse’s adultery or their unreasonable behaviour. This unfortunately means a spouse has to rely on the fault of the other party to present a divorce petition to the court.

As family lawyers, our aim is to formally bring a marriage to an end for a spouse with as little hostility as possible and where there are children involved, to ensure their best interests are put first.

In reality, the fact cited for divorce rarely affects the extent of financial arrangements, which are based on different criteria including need and available resources. Having to reply on an element of blame or fault can create animosity. If there are issues between spouses in relation to the divorce itself, these can often extend to and undermine discussions in relation to financial or child arrangements and therefore, the more amicable parties are from the outset can assist in progressing other matters.

When drafting a divorce petition based on the fact of unreasonable behaviour, we may seek to phrase any allegations in such a way to make them more acceptable to the other party, with a view to the party against whom allegations are made, agreeing not to defend the divorce.

Until very recently, family lawyers have proceeded safe in the belief that in the absence of a completely “no fault” divorce system, a pragmatic family law judge would not look too closely at what has been said by the petitioner, providing the allegation had been made and the respondent wasn’t opposing it.

However, a recent example of a defended divorce can be found in the case of Tina Owens. This case highlights the problems that arise in having to rely on unreasonable behaviour in the face of opposition. After being married for almost 40 years, Mrs Owens wanted a divorce and cited examples of her husband’s unreasonable behaviour. This included the husband’s continued upset over a prior affair, being silent during a meal in a local pub, and making inappropriate comments about her in front of her friends and family.

Mr Owens challenged that the marriage had irretrievably broken down and the original judge rejected Mrs Owens’ application, stating she failed to prove Mr Owen’s behaviour had been unreasonable, particularly in the context of such a long marriage. The Court of Appeal expressed great sympathy with Mrs Owen’s position but did not overturn the original decision as the judge at first instance had properly stated and applied the law to this case and exercised his discretion correctly. The case went all the way to the Supreme Court, where it was unanimously decided the law had been applied correctly and that it was up to Parliament to reform the law in the area.

Anecdotally, there are already stories emerging of divorce petitions being returned from courts because the allegations are not “strong enough”. Unfortunately this may mean there are increased incidents of challenges and more defended petitions than before, increasing anxiety and costs for all concerned.

Pressure has been put on Parliament for many years to consider changing the law to allow for a ‘No Fault Divorce’ in this country. Finally, there has been some progress, and the government has committed to reform the divorce process to remove the concept of fault, as announced earlier this year.

Before proceeding with a divorce, it will be increasingly important to obtain legal advice at an early stage from an experienced family lawyer, to reduce the risk of difficulties arising and to ensure that matters can be resolved as amicably as possible in the circumstances.

For a free initial consultation please call Slater and Gordon on Freephone 0808 175 7710 or contact us online and we’ll be happy to help.