As a seasoned family law practitioner it is a constant source of bewilderment to me and to my clients that in the 21st Century two people who no longer want to live together and want to bring to an end to their marriage can’t do that in a simple, painless way. It is a theme that Lady Hale, our most senior female Judge, has returned to recently, as she again proposes that divorce should be without the potentially corrosive blame and fault finding of the current system.
The grounds for divorce are adultery, unreasonable behaviour, desertion for two years, separation for 2 years with your spouse’s consent, or separation for 5 years and no consent is necessary.
So if you don’t want to have to wait to spend 2 or 5 years apart, you must use a fault-based ground and this is the problem. Why should we have to spell out the problems that lead to the end of the relationship, and what if the kids find it in 20 years amongst your documents?
Unfortunately we are where we are. Adultery is, I presume, self-explanatory. However, Unreasonable Behaviour cannot defined as there will be as many different forms as there are relationship breakdowns. It is rather like the proverbial elephant – difficult to describe, but you’ll know it when you see it!
What ever behaviour that is alleged, the test applied by a Judge is two-fold: do you (subjectively) feel that the actions you complain of are unreasonable; and, would the man or woman in the street (objectively) agree that it is unreasonable.
In any event the behaviour complained about must have taken place in the 6 months prior to the end of the relationship. Anything going back beyond that you are deemed to have accepted.
In the end it comes down to the drafting, and that is where the lawyers come in. The Petition needs to do the necessary job to get the divorce through, but be based on the bare minimum of allegations to not fan the flames of a difficult enough time, and to protect the children from too much knowledge in the future.
Perhaps it is time that Lady Hale’s call for fault-free divorce should be heard and implemented. She has only being saying it for twenty years.