John Bolch asks: is there any point in defended divorce?

Divorce|May 29th 2014

Last week Marilyn wrote a post here discussing the recent case of Price v Price, in which the Court of Appeal allowed a husband’s appeal, enabling him to defend his wife’s divorce petition. Whilst Marilyn’s post was excellent, I had some thoughts of my own about the case, and felt it might be of interest to set them out here.

I have, in fact, previously written a post here with a very similar title. There, however, I discussed the uses of defending divorce proceedings under the current law. Here, I want to consider how the law might be in future.

As, I suspect, with many family lawyers, the Price case left me with a feeling of unease. As Marilyn pointed out, Lady Justice Black herself was “extremely reluctant” to see the parties continue to litigate and allowed the appeal only “with considerable regret”.

What the decision means, of course, is that Mr Price will now have the opportunity, as Marilyn says, to ‘have his day in court’, when he can argue that his marriage has not, after all, irretrievably broken down. He will respond to each of his wife’s allegations of unreasonable behaviour and attempt to persuade the court that they are not true.

What an utterly futile exercise.

Consider, for a moment, the effect of Mr Price succeeding in his defence of his wife’s divorce petition, highly unlikely though that may be. Will this have the effect of repairing the marriage and returning the parties to a state of happy matrimony? Of course it will not. If anything, it will do the absolute opposite and push the parties further apart from one another than they ever were.

It should be an obvious statement, but it takes two to make a happy marriage. If one party has decided that they no longer wish to be married to the other then there is nothing that any court can do about it.

It may be argued that the petitioning party should be given time to reconsider – perhaps they have made a mistake, perhaps they have petitioned in haste, without fully considering whether the marriage really is at an end? My experience over some twenty-five years of doing divorce work is that very few people issue divorce proceedings without giving the matter the fullest consideration. Divorce is simply not a step that most people take lightly. But even if they do later reconsider, what is the worst that can happen if the divorce goes through? They simply do what many couples have done, and tie the knot again.

If that seems a little flippant, then perhaps all that is needed is a brief time delay between the issuing of the petition and the finalisation of the divorce. I would suggest three months, which should be plenty of time for the petitioning party to reflect and reconsider (to borrow from the wording of the now defunct Family Law Act 1996, which sought to bring in no-fault divorce).

Of course, there will be those who argue that denying a party the right to defend divorce proceedings brought against them by their spouse will devalue marriage. Well, here’s a little secret: it’s already happened. Under the present divorce law, which has now been in place for more than forty years, it is already virtually impossible to successfully defend a divorce. Despite that, the institution of marriage seems to have survived.

And there is another reason why defending a divorce should be a thing of the past: the impact that it has on court time. These days we are constantly being reminded of the pressures upon court time, particularly with the increased numbers of litigants in person since the abolition of legal aid for most private law family matters. Surely, spending time on considering the defence of a divorce petition is a waste of those precious resources? Clearly, the courts and judiciary have better things to do.

Obviously, there is a basic legal principle that everyone has the right to defend legal proceedings taken against them. However, divorce proceedings are simply not the same as other types of legal proceedings, because the breakdown of a marriage is not something that can be rectified or compensated for by a court. It is a fact, and the parties must move on to consider the consequences of the breakdown – the financial arrangements and, in particular, the arrangements for any children.

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

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  1. Andrew says:

    Leave the courts out of it. You go to the office of the Registrar of Births, Marriages, [Divorces] and Deaths. You produce the marriage certificate and photo ID and fill in a form saying you want a divorce and pay a fee – I hope a lot less than the court now exacts.

    Three (or perhaps six) months later you go back and fill in another form saying you still want a divorce. If you don’t the other party can. Either way you get a certificate of divorce.

    Meanwhile the courts handle questions of money (including child maintenance, bye-bye CMEC) and the future of the children.

    Is it not odd that if you are on your uppers and fees-exempt you can still get a divorce for nothing but if you want to re-marry you will have to pay the Registrar’s fees?

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