The importance of the Divorce Petition…
…and why it’s not that important who says what!
The person starting a divorce is called “the Petitioner”. In their Divorce Petition, the Petitioner must prove that the marriage has ‘irretrievably broken down’. This is the only ground for divorce in England and Wales. To prove this, the Petitioner must rely on one of five facts. Where adultery has not occurred (or been admitted) and a period of separation in excess of two years is not applicable, the Petitioner must cite the Respondent’s ‘unreasonable behaviour’. This is the most common fact relied upon in Divorce Proceedings today. However, it can antagonise the other party at an already difficult time. Lawyers are encouraged to send a copy of the draft Petition to the other party prior to filing it at Court, with a view to agreeing the draft particulars. The trick is having the allegations serious enough to satisfy the Court and mild enough so as not to cause the other party to want to defend them. Even if the allegations are agreed, however, the Court may still reject the Petition!
The recent case of Owens v Owens [2017] EWCA Civ 182 set out the importance of striking the correct balance. The ‘Statement of Case’ contained within the Petition must be strong enough to prove that the marriage has irretrievably broken down, even where the parties wish to avoid inflammatory examples as to the reason for their separation. In this case, the Wife petitioned for Divorce (following a 39 year marriage) on the basis of her Husband’s unreasonable behaviour. The Husband defended the Petition. He said that he did not agree the marriage had broken down irretrievably and that the couple still had a “few years left to enjoy together”. This led to protracted litigation and ultimately, following a Hearing, the Judge dismissed the Wife’s Petition on the basis that he did not think that the Husband had behaved in such a way that the Petitioner could not reasonably be expected to live with him (even though he agreed that the marriage had broken down)! Basically, the Judge thought that the Husband sounded perfectly reasonable to live with. The Judge in fact described the Petitioner’s examples of her Husband’s unreasonable behaviour as ‘minor altercations of a kind to be expected in a marriage’. Understandably, the Wife appealed this decision; however the President of the Family Court in England and Wales dismissed her appeal in March 2017 indicating that “Parliament has decreed that it is not a ground for divorce that you find yourself in a wretchedly unhappy marriage, though some people may say it should be”. In August 2017, Mrs Owens was granted permission to appeal to the Supreme Court, but if that’s not approved must stay ‘locked into a loveless and desperately unhappy marriage’ until she and Mr Owens have been separated for a period in excess of five years (when she will not need to rely on his consent).
The case of Owens has set tongues wagging (although it is not a new concern) and highlighted the urgent need for reform of the fault-based Divorce process in England and Wales. At present, one must find ‘fault’ with their partner in order to prove that the relationship has broken down irretrievably. Most lawyers believe that this only adds fuel to the fire when trying to facilitate an amicable separation and does not support the Law Society ‘Family Law Protocol’ that matters should be dealt with in a non-confrontational way.
Ultimately most couples, at the time of petitioning for divorce, are in agreement that the marriage has broken down and cases defending divorces are rare and mostly unsuccessful. But – in the event that the only way you can obtain a Divorce is to cite your spouse’s ‘behaviour’, it should be remembered that the behaviour set out in the Petition is purely a means to an end and does not influence the financial or children matters (generally speaking). Most lawyers are committed to agreeing mild particulars which are not inflammatory but which are, in most cases, satisfactory to a Judge.
Considering that the Law in this area has not seen reform since the beginning of the 1970’s, you would no doubt agree that it’s long overdue. Parliament issued a written statement on 15 February 2017 confirming that they had ‘no current plans to change the existing law on divorce’; however, with the outrage sparked following Owens v Owens, we’re hoping it won’t be too long before Parliament agrees to reconsider the rules of this archaic blame game!