ASK A FAMILY LAWYER
Each week, Stowe Family Law solicitors answer readers’ questions on different legal issues. Last Thursday, Neil Dring, who is based in our Wetherby office, explained how to begin the divorce process in England and Wales. Here he examines the commonest fault-based grounds for divorce.
The first and perhaps easier fault-based option is a divorce petition based on adultery. You need to be able to show that actually physical adultery has occurred and that the marriage has broken down. Note, however, that the adultery does not need to be the cause of the breakdown of the marriage. In fact it rarely is. Usually adultery will occur because a marriage has already broken down previously. Sometimes a couple will agree to separate intending to get divorced after two years. Six months later they have both ‘moved on’ and are with someone else, someone they had not even met at the time of the separation. They had nothing to do with the reason for the breakdown of the marriage. However, if we jump to the conclusion that sexual intercourse may have taken place, then since the former couple are still legally married then that amounts to adultery that will enable them to agree to an earlier divorce on that basis.
This is one of the situations in which the Courts and Judges are beginning to make it easier to obtain a divorce. When I first started out as a divorce lawyer and until still fairly recently, to obtain a divorce based on adultery you had to name the third party. That third party had to be sent a copy of the petition and had to sign to say they agreed. Tricky sometimes, especially if they were also married and yet not separated from their own spouse. However, more recently that has changed, quire dramatically. Third parties no longer need to be named. In fact Judges expect that they will not be named or involved in the divorce process at all. Not quite a “no-fault” system just yet, but a move in that direction I believe.
Where adultery has not occurred, can’t be proved or is not admitted, the remaining fault based fact that can be relied upon to avoid a two year wait is the “unreasonable behaviour” of your former partner. This needs to be more than that the two of you just do not get on anymore or have drifted apart. You must be able to point to some specific behaviour or actions on the part of your spouse that are unreasonable, so that you cannot be expected to continue living with them.
Again, in the past this needed to be some fairly serious behaviour in order to persuade a Judge to grant a divorce. I practiced in South Yorkshire at the time of the Miners’ Strike and in the aftermath that tore families and communities apart. Difficult times. Domestic violence, abuse, drunkenness and gambling was, sadly, not uncommon. Moreover, specific and detailed reference to that sort of serious behaviour usually had to be referred to in order to obtain a divorce, certainly in that part of the country. It was not uncommon for petitions that did not have a mix of these ingredients to be rejected to the Courts and for divorces to be refused.
Thankfully however, over the years that have passed since then Judges have become increasingly willing to accept Petitions with very significantly less serious behaviour allegations. In fact the expectation nowadays is that behaviour Petitions will be drafted much more moderately and in a way that is designed, so far as possible to be non-controversial and to avoid ill-feeling. We are encouraged to send a copy of the draft Petition with the proposed behaviour allegations to the other spouse to be agreed before issuing it at Court. I see behaviour Petitions go through now that years ago would never have got off the ground. And that has to be a good thing if it avoids increasing animosity between separated couples, especially if young children are involved. Again, the law does not yet allow for a no fault divorce but the continuing lowering of the bar, in terms of the nature of behaviour allegations required to persuade the Judge to grant a divorce, shows that we are moving in that direction.
“And now for the traffic news…”
A note of caution in this for some of us, however. I recently saw a divorce petition that had been drafted by another, not local, solicitor. Frankly the allegations of behaviour did not amount to very much at all. Nowhere near enough to get a divorce back in the days of Mrs Thatcher. In fact, the most serious allegation of behaviour contained in the petition was that the husband was always complaining about the weather and about traffic jams! Traditional English pastimes as I had thought; but now perhaps grounds for divorce. The Judge hasn’t decided yet. I’ll let you know how it goes.