It doesn’t matter why the marriage broke down

Family Law|February 12th 2015

Well, it probably does of course matter to the parties themselves, but so far as the court is concerned, it almost certainly does not. The only thing that matters to the court is that the marriage has broken down. The reasons for the breakdown are usually of little or no importance.

Some people going through a divorce can expend enormous amounts of time, money and effort in trying to prove that the breakdown of their marriage was due to the fault of the other party. It is, however, almost certainly a futile exercise. In particular, it is extremely unlikely to affect the outcome of any related proceedings concerning arrangements for any children and sorting out the financial settlement.

The only thing that it may be relevant to is who should pay the costs of the divorce – unfortunately, we still have a system whereby one party can be found to be at fault for the marriage breakdown, and they may be ordered to pay the other party’s costs of the divorce. Note, however, that these are only the costs of the divorce itself – not, for example, the costs of any financial remedy proceedings. The costs of the divorce alone should be relatively minimal.

Otherwise, unless, unusually, the behaviour of the party ‘at fault’ is relevant to children issues it will not have a bearing on proceedings relating to the children. As to any financial settlement, the conduct of one party also has no bearing, save in very extreme cases, such as where that party attempted to kill the other. Unless the conduct is of that level of seriousness, it will not be taken into account when the court considers the financial settlement.

It is no surprise, therefore, that before concluding her judgment in Lindner v Rawlins Lady Justice Black, perhaps with a little exasperation, directed the following observation towards the parties:

“More than two years have now elapsed since they separated. They could now be divorced by consent without the need to engage in hurtful, time consuming and distracting litigation over how they behaved during the marriage. I encourage them to take this course in their own interests and those of their children.”

Regular readers may recall that I have previously written about Lindner v Rawlins, and the point I want to make here is much the same as the one I made then. The case concerned a husband’s attempt to require the police to disclose a statement of a third party, which he hoped to use in contested divorce proceedings. The county court judge had refused to order the disclosure of the statement, and the husband appealed. Giving the leading judgment in the Court of Appeal Lady Justice Black dismissed the appeal and made the observation referred to above.

I can fully understand how deep feelings can run after a marriage or relationship breakdown – obviously, I witnessed this regularly during my twenty-five-odd years as a practising family lawyer. However, allowing those feelings to drive you into a blame exercise, often motivated by a desire for revenge, is not only likely to be futile, it is also likely to increase costs and drag matters out unnecessarily, when the best approach is to resolve matters as quickly as possible and move on. The divorce itself is in a sense not important – it is merely giving effect to the fact that already exists – that the marriage has broken down. Arguing over who was to blame will not alter that fact.

Lady Justice Black made another observation at the end of her judgment. She said that as the husband was not represented he approached the case on a mistaken basis (perhaps if he had been represented throughout he might have been persuaded not to enter into defended divorce proceedings at all, I don’t know). As a result the judges of the Court of Appeal were left with the task of finding relevant documents amongst the material presented, and researching the law and its application to the facts of the case – a task that would normally have been fulfilled by the parties’ legal representatives. This was not a satisfactory state of affairs, she said, as the time taken to attend to this was considerable and could not be spared in what is already a very busy court.

In a concurring judgment, Lord Justice Aikens developed the point by referring to the fact that the courts are having to deal with far more cases where the parties are not represented, since the abolition of legal aid for most private family matters (I’m not sure if the point is relevant to this case, as I understand that the husband did previously have solicitors). He said:

“Money may have been saved from the legal aid funds, but an equal amount of expense, if not more, has been incurred in terms of the costs of judges’ and court time. The result is that there is, in fact, no economy at all. Worse, this way of dealing with cases runs the risk that a correct result will not be reached because the court does not have the legal assistance of counsel that it should have and the court has no other legal assistance available to it.”

That, I suppose, is something of an aside, albeit a point that one would hope that the Ministry of Justice might take.

Otherwise, though, the moral of the case is clear: don’t waste your energy arguing over behaviour during the marriage – you have far better things to spend it on.

Photo by Sunchild57 Photography via Flickr

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  1. Sarah says:

    Would this apply if domestic violence and rape was present in the marriage and courts approved police and medical records to be disclosed during children/fact finding hearings?

    • Luke says:

      I do hope so, because if we are going to monetise alleged domestic violence and alleged rape within marriage we are providing a massive incentive to the unscrupulous…

  2. Andrew says:

    Defended divorce is a nonsense. If ether party says it’s over, it’s over, and the role of the court is to sort out the finances and the future of the children if the parties can’t do it themselves. And in the case of the finances within tight guidelines which start at fifty-fifty and usually end there – postponing it if necessary to protect the children while they are children.

  3. Dr Grumpy says:

    In my ex-wife’spetition she accused me of domestic violence under ‘Unreasonable behaviour’ I objected to this via my solicitor who advised not to contest the divorce but not to agree to the grounds!
    Turns out that once we had the kids she wanted to come out as a lesbian which is the real reason for the divorce!

  4. Andrew says:

    Even if we persist in keeping divorce judicial, we could so organise the process that the judicial personages dealing with the financial claims did not know which party petitioned and on what grounds, All that judge needs to know is that there has been a divorce. Any witness statement disclosing who got it and why should be removed from the file and not replaced!

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