A chink of light for a conciliatory divorce

25 Sep 2017

As a committed member of resolution my colleagues and I strive to adopt a conciliatory approach where possible and ensure our cases are dealt with as painlessly as possible. We work hard to help our clients leave the marriage with their dignity intact and feeling that they have retained control of the process and developed a positive post separation parenting relationship with their former spouse. This is of course not always possible, but it is what we try to achieve where we can.

Figures obtained by National Family Mediation (“NFM”) this month following a Freedom of Information request appear to show that in 2016 over 60 % of couples ignored the requirement to attend a Mediation Information and Assessment Meeting (MIAM) before commencing court proceedings.

One of the first things we tell our clients is that the divorce proceedings should be a simple process. If both parties have concluded that the marriage has broken down irretrievably then the divorce itself is simply a procedural exercise. How we deal with the financial arrangements of the marriage and the future care of the children is far more important and are entirely separate to the divorce proceedings. What the petition cites regarding the breakdown of the marriage will have no impact on this. The future financial arrangements and future care of the children will be based on the parties’ needs and what is in the best interests of this children.

Unfortunately the current divorce law provides that, unless there has been an adultery, one party has to present a petition for a divorce based on the other’s unreasonable behaviour or be prepared to wait two years after they have separated. Beginning a case focusing on the historic behaviour of one party flies in the face of our commitment to adopt a conciliatory approach and focus on the future.

To avoid unnecessary hostility, as practitioners, we have advised our clients to keep the particulars of their spouses’ behaviour as mild and succinct as possible so there is just enough for the Judge to hang his hat on there being some evidence of behaviour, but not too much to unnecessarily inflame what is already an incredibly sensitive situation.

It was with such a heavy heart that my colleagues and I read the judgement of Owens v Owens [2017] earlier this year. In this case the husband defended his wife’s petition for divorce. Both parties had to give oral evidence in court and despite Mrs Owens by then listing 27 allegations against her husband, the Judge decided that the particulars listed did not prove that Mr Owens had behaved in such away that his wife could not reasonably live with him and her petition was dismissed. This decision was upheld by the Court of Appeal.

Thankfully Mrs Owens has been granted permission to appeal to the Supreme Court. Mrs Owens will argue that the court’s emphasis on trying to find a respondent’s behaviour is “unreasonable” is wrong. She will argue that this linguistic trap ignores the fact that the statute does not require unreasonable behaviour, but behaviour such that the petitioner cannot be reasonably being expected to live with the respondent.

Resolution has lodged written submissions in support of Mrs Owens’ appeal and will be applying to intervene in the substantive hearing.

In the meantime Resolution and we as Resolution members, will continue to champion the need for a no fault divorce to negate this issue all together.

Until then, lets hope the Supreme Court see the sense in Mrs Owen’s approach so that we can prohibit any other couples facing divorce from the risk of suffering this unnecessary and painful litigation and we can continue to focus on what is important, which is to help each separated family on the road to their new beginning.

If you have separated from your spouse and need expert advice and assistance, our family team at Trethowans are here to help.