Fewer than 1% of divorces are defended each year according to recent research by the University of Exeter making contentious divorce cases rare.
The narrowness of our fault-based divorce laws means that one party must either take and accept blame or have long periods of separation before a marriage can be legally dissolved. The momentum of the no-fault divorce movement is certainly increasing but for now, that is not an option for separating spouses to cite.
So, what can you do if you find yourself on the receiving end of contentious divorce petition? Are there any effective strategies you can use? Actually, there are and Jason Stanley from the Stowe Family Law Altrincham office joins as a guest blogger to look at the options.
In order for a Court in England and Wales to be satisfied that two spouses are entitled to have their marriage legally dissolved, they are obliged to plead that the marriage has broken down irretrievably and to choose one of five mandatory facts that best fits the circumstances of that breakdown.
Of the five facts available (adultery, behaviour, separation of two years with consent, five years separation without consent and desertion), adultery and behaviour are fault-based that can carry costs consequences. In other words, the petitioner has the option to state that because of his or her spouse’s behaviour or adultery, that defaulting person should pay the legal costs associated with issuing the divorce suit.
The behaviour of the other spouse is the most common fact cited as the two separation facts (either two or five years) require the spouses to spends periods of time apart and many people seeking a divorce are unwilling to wait for that long. Desertion is an old-fashioned and rarely cited fact and adultery must be proved, which evidentially, can be difficult to achieve if the unfaithful spouse denies the allegation of infidelity. Regrettably, there is no option of citing a no-fault divorce i.e. a divorce requiring little or no period of separation and no blame being attached to the reason for the marriage breaking down. A “quickie divorce”, seemingly the privilege of many a celebrity divorcee, is a complete misnomer and it is not possible to simply inform a court that both parties have come to a mutual decision that the marriage has run its course.
The consequence of this is that to be able to issue a petition immediately, either adultery or behaviour are the only two available grounds that naturally means pleading fault based particulars that can be inflammatory in nature, exaggerated, taken out of context or in some instances, completely untrue. The narrowness of our fault based laws compels a person to blame the other spouse to prove an irretrievable breakdown of a marriage and is in direct conflict with the promotion of an amicable and conciliatory approach that the various family law protocols and our regulatory bodies encourage. The knock-on effect of this is that it can make the separate resolution of children and financial matters more difficult to achieve.
At Stowe, we are experienced family specialists who recognise that navigating through the choppy waters of a divorce is a hugely stressful experience. We realise that it will be very difficult for a client to be expected to try and contain raw emotions when their lives as they know it, be that where they will live, where their children will spend their time or whether they will have enough money in the short and long term, will be difficult concepts to comprehend.
What does happen if a client is the recipient of a highly charged divorce petition (spouses are representing themselves more often these days and will not understand or be aware of the family law protocols) or the pleadings are simply untrue?
A practical and cost-efficient approach is taken at first instance because a sensible client should invest their legal costs budget in the resolution of future financial or children issues. There are several and sensible tactics to employ if this situation arises:
1, If the divorce petition is in draft form and has not been issued at court, then we will certainly seek to robustly negotiate that any unnecessarily inflammatory or untrue pleadings are removed before it is issued. The Family Law Protocol encourages this.
2, If the divorce petition has already been issued at court and processed, then it is open to invite the petitioner to agree to amend the divorce petition and remove those pleadings but this will incur a court fee (presently £95) and additional costs (if represented) to draft and prepare the amendments. This rarely occurs.
3, A common option is to file an acknowledgement of service form confirming that a divorce petition will not be defended but this is conditional upon a supporting statement that is attached to this form. Such a supporting statement will challenge any untrue particulars or will contextualise any outlandish allegations. The skill of the solicitor will be to draft such a statement to ensure that the respondent client’s objections are duly noted and not overdone so as to unwittingly result in a court concluding that the divorce is, in fact, being defended. The attractive feature of this option is that the divorce can progress undefended, legal costs will be kept to a reasonable level and the respondent gets an opportunity to redress the balance to some degree of what will be a one-sided account of why the marriage broke down.The other compelling feature of filing a statement in support is to evidentially address any unfounded allegation of financial misconduct or child welfare that could have repercussions in separate disputes about matrimonial finances or child arrangements. It is, therefore, crucial to seek independent legal advice before completing an acknowledgement of service form. A wary client should not be fooled by the apparent simplicity of this form and it is important to get this right as it lays the foundations for when a judge will come to review the documentation and to consider whether the spouses get permission to have their marriage dissolved or not.
4, The final option is to defend a petition but this is incredibly rare (recent records show that only a handful of divorces are defended each year). This is a specialist and very costly procedure and the system is designed to keep defended petitions to an absolute minimum. Having said that, in a recent and well-publicised case of Owens v Owens  the husband sought to defend a behaviour petition that his wife issued. The judge found in his favour which potentially means that the wife will remain locked in a loveless marriage until she is able to petition once a period of five years has lapsed. Thankfully she issued an appeal against this decision. The decision of the Supreme Court is awaited.
Frankly, if one spouse is desperate to exit what they perceive to be an unhappy marriage, it is ultimately, a futile exercise to prevent that from occurring. What is essential is that you exit your marriage with dignity and with as little damage as possible.