Making the decision to divorce can be an incredibly difficult. Many couples will want the process to be as straight forward as possible at a time where emotions are running high. Unfortunately, the current legal framework can cause further complications for couples.
There is only one ground for divorce and that is that the marriage has broken down irretrievably. Currently, the law states that this has to be proven by relying upon one or more of the following facts: "unreasonable behaviour", adultery, desertion, 2 years separation with consent, or 5 years separation.
If you have not been separated for the requisite period then you have a difficult decision to make. Either you wait, or you rely upon one of the other facts which means apportioning blame to the other party. "Unreasonable behaviour" is the fact most commonly cited but by its very nature can cause a whole host of problems in the relationship. It can cause animosity, cause problems in reaching solutions in terms of the finances and children and make it difficult to end a relationship on good terms.
The case of Tini Owens has been in the spotlight recently as she tried to divorce her husband of 40 years on the basis of his "unreasonable behaviour". The Supreme Court unanimously rejected her arguments and concluded that his behaviour was not sufficiently unreasonable to grant a divorce. Tini was understandably devastated by this news as she now has to remain married until 2020.
A recent survey has found that couples feel pressured into exaggerating allegations in a divorce petition, or to "bend the truth", so that the reasons given are more likely to be found sufficient, if challenged. This is because couples are becoming more and more concerned that a petition could be rejected by the Court as was seen in the Owens case.
Contested divorce proceedings are rare. In fact less than 1% of all divorces are defended each year. This is because it can be extremely costly, complicated and many view it as unproductive. Although the number of contested cases are relatively small, people are clearly concerned about it happening. This is probably due to the widespread reporting of the Owens case.
It is important to carefully consider the reasons that you cite in the divorce petition as they could be challenged later on. It is crucial to be truthful in the divorce petition as there can be serious consequences if you are found to have been dishonest.
The Owens decision has prompted debate about the appropriateness of the current legislation and the need for review. Should you be forced to stay trapped in a marriage that you consider is over even if the other party doesn't agree? The current law makes it difficult to end a relationship on good terms, due to the requirement to apportion blame. This directly conflicts with other principles in family law such as reducing confrontation and conflict and encouraging couples to talk directly to find the right solution for them.
In a recent survey of more than 1,000 divorcees, 80% said they would rather have the option of a 'no-fault' approach to divorce. More than 1 in 4 surveyed said that attributing fault caused more tension between them and their ex-partner, and reduced their previous hopes of being able to divorce in a friendly manner. Not only does the process of attributing fault add to their own anger, it can also cause upset to other parties, such as their children.
If the law were to provide for 'no-fault' divorce, it may reduce bitterness between the parties meaning more amicably settlements which could save them time and money. However, some argue this approach would make the process of getting a divorce a lot easier, increasing the number of divorces and may be seen as an "easy way-out", but if the law isn't updated there may be a rise in exaggerated and embellished allegations which has its own problems!
The Owens decision underpins how vital it is that Parliament revisit the current legislation. We will eagerly await their review.
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*This article is provided for general information purposes only and does not constitute legal advice or other professional advice.