“Our society in England and Wales now urgently demands a second attempt by Parliament, better than in the ill-fated Part II of the Act of 1996, to reform the five ancient bases of divorce; meanwhile, in default, the courts have set the unreasonableness of the behaviour required to secure the success of a petition on the second basis, namely pursuant to s.1(2)(b) of the Act of 1973, even when defended, at an increasingly low level.” – Wilson LJ in Miller Smith –v- Miller Smith 2009 EWCA 1297
Stowe Family Law represented the successful husband in this case. The judgment of the Court of Appeal, heard before the President and given by Lord Justice Wilson, was handed down today. I will not of course discuss the specific facts of the case and nothing that follows does so. But, on a general note, Miller Smith is a useful example of alternative options available to deal with the financial problems caused by a defended divorce.
In such cases, finances cannot be dealt with in the usual manner, as the brakes are firmly applied until the divorce is out of the way, which could take a very long time. What is one party to do, who wishes to move on with his or her life and finds themselves apparently stymied?
Defended divorces are rare, and a practitioner will thus only occasionally come across the problem. But there is an alternative route in appropriate cases – the use of other law, such as section 14 of the Trust of Land and Appointment of Trustees Act 1996 (TOLATA) and section 17 of the Married Womens Property Act 1882, to obtain an order for sale of jointly owned property, and section 33 of the Family Law Act 1996, to secure an occupation order of property.
The exercise of those options by the court is discretionary, however, and whilst the Court of Appeal in today’s judgment, emphasises that adopting the “holistic” approach within divorce proceedings is preferable, it also gives useful guidance on the threshold that has to be crossed for it to make these alternative orders.
What sprang off the page for me, though, is the quote above from the Court of Appeal relating to what seems to me a strongly perceived need for family law reform. The Court has drawn attention to a dichotomy- a practice which has grown up over several years, where parties going through divorce are expected to try and resolve matters as sensibly and amicably as possible, yet obliged to throw mud for the process to conclude swiftly.
Current law in England Wales requires a marriage to have irretrievably broken down, if a divorce is to be obtained, and for this to be proved by one of five facts. Those (briefly) are:-
1. Adultery and the Petitioner finds it intolerable to continue to live with the Respondent.
2. The Respondent’s behaviour is so unreasonable that the Petitioner cannot reasonably be expected to live with the Respondent.
3. The parties have been separated for two years and both consent to a divorce.
4. The Petitioner has been deserted for two years by the Respondent
5. The parties have been separated for five years.
The only way of obtaining a divorce, therefore, without a wait of at least two years, is by alleging misconduct, whether by way of adultery or unreasonable behaviour. In the absence of proof of the former, the latter is almost always the chosen method of initiating a divorce, as statistics demonstrate.
But allegations of unreasonable behaviour in a divorce petition, starkly set out and frequently viewed as exaggerated or invented by a Respondent to a petition, are very unhelpful in setting the tone for negotiation of the issues that follow: namely children and finances. The Respondent will be inflamed, and may give instructions to fire off a cross petition, to put another side to a story, that no-one – least of all the courts – particularly wishes to know about and would prefer to be kept private.
So, in recent years, to avoid this and heightening the temperature of cases, the tendency has been to keep allegations of misconduct as minimal or anodyne as possible. It is considered good practice (The Law Society’s Family Law Protocol) where possible for practitioners to try and agree the proposed “unreasonable behaviour” with the other lawyers, and once this has happened a suitably sanitised petition is presented to the court.
Similarly, the Courts have adopted the practice of allowing, through such a petition, a much lower standard of “unreasonable behaviour” than some years ago, precisely to achieve the sensible aim of conciliation and swift resolution of the entire process.
But it does make a mockery of the current law, doesn’t it? Worse still, the present law doesn’t reflect what all but the tiniest fraction of divorcing couples, practitioners and Courts are trying to achieve – a straightforward, low key, cost effective and amicable settling of all the issues thrown up by a case.
And here I return to the principle of swift, “no fault” divorce, of which I am strongly in favour. I have a simple viewpoint. If parties can make up their respective minds to marry, then they may do so without ‘hoo hah’. Similarly, if they decide to divorce, they should be able to do so equally swiftly – with dignity and less cost and without mud slinging…and without expensive nannying either.
A problem arises where only one party to the marriage wishes to divorce and steadfastedly refuses to consent to it. It seems to me there should be a (rare) option, with costs risks – a fall back position that “in extremis” a court may make a decision based on fault. There could also be provision for financial relief, irrespective of a defended divorce. How that is to be achieved, however, is something for brilliant brains, specifically tasked with the job, and definitely not one for a day dreamer such as me!