The fault in divorce: Who’s to blame?

We often hear of Hollywood celebrity couples obtaining divorces, citing their “irreconcilable differences”.

However, if a UK court is asked to administer a couple’s divorce, the couple cannot simply state that they have mutually decided to end the marriage.

What are the official reasons for divorce?

You can view the reasons and their definitions on the Gov UK website.

How do you start the divorce process?

One spouse has to start the divorce process because it is not possible for a couple to present a joint petition to the courts. The spouse who petitions for divorce will have to state why the marriage has broken down and if the couple has not lived separately for a period of at least two years, one spouse has to state that the other has committed adultery or behaved unreasonably. There is a clear element of blame and fault. Most divorce petitions presented to the Court cite behaviour as the reason for the marriage breakdown.

What is unreasonable behaviour?

There are strong calls for the element of ‘fault’ to be removed from the divorce process.  Indeed, when parties reach a financial settlement or discuss arrangements for their children, the reasons for the relationship ending are irrelevant in most cases. It also throws up the question as to how badly one spouse has to behave in order for a Court to consider that behaviour to be unreasonable.

Gov UK gives some clear examples of unreasonable behaviour as grounds for divorce; physical violence and verbal abuse, drunkenness or drug-taking and refusing to pay for housekeeping. It’s fair to say that in our society (and within the legal system) these examples are accepted as acts of unreasonable behaviour.

However, these are just examples and the Courts will recognise a wide range of particulars within a petition.. So, the question is both objective and subjective; would anyone think that their spouse’s behaviour is unreasonable and, can we say that specific behaviour demonstrated by that particular spouse would be seen as unreasonable by their particular spouse?

This question was raised in the ongoing matter of Mr and Mrs Owens. The Owens were married for some 37 years and Mrs Owens petitioned for divorce from her husband after moving out in February 2015. In January 2016, after the parties had been separated for almost a year and Mrs Owens had set out some 27 particulars of Mr Owens’ unreasonable behaviour, the Court refused to accept that these reasons were sufficient.  Mrs Owens referenced her husband’s critical behaviour in relation to her choice of gift for their housekeeper and hurtful remarks made to her when dining out with a friend.  She also alleged that on an evening out in the pub, Mr Owens had been reluctant to spend time with her and that he had been disparaging of her for leaving cardboard in the yard at their home.

The trial Judge did accept that the parties could not live together, but was not convinced that the reasons Mrs Owens detailed were not more than the usual disagreements that any married couple would encounter. Mrs Owens obviously deemed the behaviour as unacceptable after living with Mr Owens over such a long period of time, but to an outsider the problems may not seem as  deplorable as some of the examples listed on the Gov UK site. Mrs Owens appealed to the Court of Appeal, which was refused, however, the Supreme Court has now agreed to hear Mrs Owens’ case.

The problem with the legal framework

The legal framework of a ‘fault’ based divorce has been heavily criticised by legal practitioners, Resolution (a national organisation of accredited Family lawyers) and the President of the Family Division. In most cases, the allegations of behaviour in a divorce petition will have been agreed by both parties by the time the petition is sent to Court. This generally means that the behaviour detailed within the petition will have been tempered so as to not to overly antagonise the respondent spouse, but will have enough substance to show to a Court that there is a relationship breakdown. This can result in the real reasons for a marriage breakdown being manipulated and contorted to fit the Court model. Mrs Owens’ legal team are likely to argue at the Supreme Court that this is a “linguistic trap”.

Mrs Owens is currently in a position where she is unable to accurately dictate the course of her marriage. If the law allowed her to petition for a divorce without citing ‘fault’, then she would not be in this sad predicament. Arguably, the current legislation is unsatisfactory. Those opposed to any reform say that removing fault divorces would further undermine the institution of marriage, making divorce far more accessible. In reality, however, a behaviour petition can already be fabricated or agreed between parties and is not necessarily a deterrent to divorce. A reform of the system would modernise the law and possibly help to assist parties on focusing on more challenging issues of financial and children matters.

The Supreme Court’s decision is eagerly awaited and as pressure grows, Parliament may finally consider that divorce legislation, which is almost 50 years old, needs reform.  The Supreme Court will hear the matter on 17 May and Resolution are heavily involved in lobbying for reform.