About the Family Law Week blog

The Family Law Week Blog is a companion site to Family Law Week. It complements the news, cases and articles published on Family Law Week with additional comment and coverage of the wider aspects of family law.

The Blog is edited by Jacqui Gilliatt, of 4 Brick Court and Lucy Reed, of St Johns Chambers.

Tuesday, 3 April 2012

Unreasonable behaviour vs No-fault divorce: Guest Post by Peter Burgess of Withers

Today's Guest Post is by Peter Burgess of Withers LLP.

An article appears in the Daily Mail last week about a Wife whose case went to the Court of Appeal. Apparently she was arguing that her husband should never have been "allowed" to divorce her because the grounds were so "trivial".

The article tells of how she had broken down in tears in Court when she described the particulars of his unreasonable behaviour petition as "normal squabbling between a husband and wife". According to the piece, the Court of Appeal , though sympathetic, did not allow her appeal. Thorpe LJ said that although the marriage could not be saved he felt "the sadness of the wife’s position and her complete inability to accept what has happened to her."
As practitioners, we often come across situations where one client wants a divorce and the other does not feel ready to let go of the relationship. In those circumstances, it is only right that the person who feels the marriage has irretrievably broken down has the right to bring it to an end.
Having explained to many clients over the years that if they have not been separated for two years and both parties have been faithful, they need to be prepared to cite some aspects of the other party's behaviour, I am very familiar with the appellant in this case's emotional reaction to the particulars cited by the husband.
The current practice among family lawyers for making unreasonable behaviour particulars as anodyne as possible is the next best thing to the no fault divorce system contained within the Family Law Act 1996 which was never brought into force. It is a compromise position; a practical means of mitigating the animosity when marriages come to an end within the Matrimonial Causes Act 1973. This case does show, however, the pitfalls operating a no fault system within a 40 year old legislative framework and the difficulties for lay clients trying to grasp the finer points of the system. For a system that is meant to help parties move on, reflecting on the wreckage of a broken relationship by picking out the aspects that are least offensive (but still offensive enough) seems an odd starting point. 
The current system defies logic. On the one hand, if one client is not ready to accept the end of the relationship, then citing their behaviour (however anodyne) is only going to rub salt in the wound, inflame tensions and lead to an escalation of ill-feeling. I have sat with many clients who feel guilty that they have come to the end of the road before their partner has got there. We then ask them to point the finger at the other party to achieve the finality they seek.
On the other hand, if both spouses are agreed that the relationship has come to an end, there equally seems little point doing what one High Court Judge memorably described (in the context of financial provision on divorce) as "rummaging in the attic of the marriage".
Clients are always amazed to hear that the reasons for the breakdown of the marriage and one party's behaviour towards the other has a negligible impact on the division of finances. Contrary to popular belief, bringing into force new legislation will therefore not mean more gold-diggers are allowed to swindle their rich spouses because it is easier to get a divorce. The current system would allow them to cite anodyne particulars in any event to pursue their financial claims on divorce.
Although it is often found within the factual evidence in disputes between parents, spouses' behaviour towards each other has no place in law in children proceedings, where the child's welfare is the court's paramount consideration. The reasons for the marriage breaking down will usually have no bearing on decisions over contact and residence.
Why then, is there a need for particulars of behaviour to be cited in a petition? It has no relevance to anything. Behaviour petitions are a "means to an end" and that is the advice that clients are receiving every day on the ground. The lady in the Daily Mail case is right, in the sense that we ask clients routinely to escalate what could, in one marriage, be perceived as normal behaviour between two spouses instead of allowing spouses to simply accept that sometimes relationships do not work and that neither party is to blame.
Furthermore, at a time when the Family Justice System is under intolerable strain and where both judicial time and time spent by court staff is at an absolute premium, a more straightforward system which recognised in legislation the position on the ground would have practical benefits as well. The case for removing divorce from the court system was well put by the President of the Division himself last Saturday at the Resolution National Conference when he said:-

"At the moment, it seems to me we have a system – so far as divorce itself is concerned – which is in fact administrative, but which masquerades as judicial. No doubt this has its roots in history. In the 19th century, and for much of the 20th, divorce was a matter of social status. It mattered whether you were divorced or not, and if you were, it was important to demonstrate that you were the innocent party. All that, I think, has gone. Defended divorces are now effectively unheard of."

California paved the way with the introduction of no fault divorce in the Sixties.  It is the norm throughout much of the developed world.  Perhaps it is time that we moved into the 21st Century in this regard?

From: Jacqui Gilliatt [mailto:jacquigilliatt@blueyonder.co.uk]

No comments: