As I explain to my clients, divorce is legally about two things – the legalities of dissolving the marriage by divorce (getting to a decree absolute) and the process of reaching a financial settlement (hopefully by agreement).
The former, ie the divorce itself, should be a straightforward process – it is a paper procedure, no one needs to attend court and the costs are relatively minimal. However in England and Wales, to start the divorce process the petition (which is the document filed at court requesting a divorce) has to set out the reasons why the marriage has broken down.
The reasons available are that one party has committed adultery, one spouse’s behaviour has been unreasonable, one spouse has deserted the other, or that the couple have been separated for a period of time (two years if both agree or five years if no agreement).
We therefore have to work with a divorce process (put into place over 40 years ago) where it is often necessary to apportion blame for the breakdown of the marriage, at the outset of the divorce process. That is never an ideal start point for any negotiation – a badly drafted divorce petition can inflame an already difficult situation – but the Government continues to refuse to consider a “no fault” divorce system.
The press have recently reported the case of Mr and Mrs Owens where the Court of Appeal has refused Mrs Owens a divorce on the basis that they do not consider her petition (based on her husband’s unreasonable behaviour) is sufficient to prove the marriage has broken down irretrievably.
Most divorces proceed on the basis of one spouse’s unreasonable behaviour. It is a delicate balancing act for the divorce solicitor to ensure that the behaviour recited is sufficient to satisfy the court but whilst not obliterating an ongoing (parental) relationship that is going to be necessary.
Good practice is to draft the petition and let the other spouse have sight of this, and provide the opportunity for their comment, before it is finally issued at court (when amendment is not quite so easy and can become expensive).
The advice and guidance of experience in this initial point of a divorce is going to be critical if the tone of the divorce is to set off on the right track. The approach adopted at the outset of the divorce can result in significant cost savings in later negotiation about financial issues.
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