Louisa Callaghan
The first working Monday of January, dubbed “divorce Monday” by many, sees huge numbers of couples end their marriages. It seems many couples wait until after the seasonal holidays before initiating a separation and we see a surge in queries from spouses planning to break up.
The Office for National Statistics (ONS) estimate that 42 per cent of all marriages end in divorce with around half of these divorces expected to occur in the first ten years of marriage.
The most recent data on marriage breakups shows that 106,959 divorces of opposite-sex couples were granted in England and Wales in 2016 and 112 divorces of same-sex couples. The comparatively low divorce rate of same-sex couples can be put down to the fact that they only account for around 0.2 per cent of the population and have only recently been possible in England and Wales with the first same-sex marriages taking place on 29th March 2014.
So, what are we likely to tell you during an initial divorce enquiry? Well, we regularly see clients who want to divorce because they have simply grown apart from their spouse. Sadly, these clients are very often faced with the reality that unless they wait 2 years in order to obtain a divorce they will be required to blame the other.
This is because, since 1971, the only ground for a divorce is the irretrievable breakdown of the marriage. The person seeking a divorce must show that the marriage has broken down irretrievably by claiming one of five facts. Three of those require a period of separation of at least two years: desertion of two years or more; separation of two years with both parties agreeing to the divorce; or five years’ separation. If a spouse does not wish to wait for two years, and understandably many do not, the only other options available is to claim that the other spouse has committed adultery (which is often not applicable) or, behaved in such an unreasonable way that the other cannot be expected to live with them.
Perhaps unsurprisingly, the ONS claims that unreasonable behaviour is by far the most common fact used for both opposite-sex and same-sex couples when seeking a divorce. This is certainly true from our experience where, even in cases of adultery, it is not uncommon for the party who has been unfaithful to file a divorce petition citing their spouse’s unreasonable behavior, blaming them for the fact that they have committed adultery.
Earlier this year the media widely reported on the Court of Appeal case involving Tini Owens, who sought to overturn an earlier court decision refusing her application to divorce her husband, Hugh Owens. The petition cited his unreasonable behavior but the judge found “no behaviour that the wife cannot reasonably be expected to live with the husband”. The application to appeal the decision was refused as the law had been applied correctly and, for the time being, Mrs Owens remains married!
In reality, most divorcing couples won’t find themselves in the same position as Mrs Owens. Certainly, the pressure being placed on the Government by legal professionals to change the law and allow “no fault” divorce is increasing and it seems that change could be afoot. The President of the Family Division, Sir James Munby, denounced the current law as “based on hypocrisy and lack of intellectual honesty”.
That being said, change takes time (particularly in the law) and statistically speaking, those clients that wish to obtain a divorce will be citing their spouse’s unreasonable behavior for the foreseeable future. Family lawyers must therefore continue with the fine art of preparing a “behaviour petition” in a relatively mild way that will not upset the receiving spouse but is still sufficient for a judge to legitimately grant a divorce.
At Neale Turk LLP, we are committed to the constructive and efficient resolution of family disputes. We are members of Resolution, an organisation of 6,500 family lawyers and other professionals in England and Wales, who subscribe to a Code of Practice which is geared towards encouraging a constructive and non-confrontational approach in all family matters. When preparing a “behaviour petition”, we will always attempt to agree the contents with a client’s spouse. This usually paves the way for co-operation and sets a positive and practical tone when resolving any remaining issues such as matters regarding finances and children.