How can mediation help couples discuss prenuptial agreements?
It is rare for there to be contested divorces. It involves the distressing situation in which one party argues that the marriage can be saved in spite of the other party’s assertion that it has broken down irretrievably. In a recent case, a husband tried to prevent a divorce after his wife based the petition on an argument about her map reading skills whilst on a wine tasting holiday in Burgundy (presumably amongst other things). He claimed that his wife had not provided the judge with anything that proved the marriage had irretrievably broken down. However, the court refused the husband permission to appeal and allowed the divorce to proceed.
Under English law, it is necessary for one party to prove that the marriage is beyond repair. If a couple wish to divorce without delay then they will need to prove the breakdown of the marriage by citing either adultery or one partner’s ‘unreasonable behaviour’ in the divorce petition. Thankfully, gone are the days of couples colluding in order to prove adultery, which can now just be admitted. However, in ‘unreasonable behaviour’ cases, one party is still required to provide details of the behaviour that they find intolerable in order to convince the judge that the marriage cannot be saved.
The divorce petition can set the tone for the entire proceedings and as a result it is best practice to try to agree the contents before it is lodged at court. However, solicitors are often left with an artificial balancing act. The behaviour must be sufficiently objectionable for a judge to be able to declare that the marriage is over; but must avoid unnecessarily raising the temperature of proceedings.
The law as it stands does not trust a couple with the autonomy to bring their own marriage to an end in a neutral, blame-free way unless they have endured a form of two year ‘cooling off’ period of separation. But this is just not practical for the majority of couples who do not want to, or cannot, wait that long to resolve financial matters.
The divorce process is inherently emotional and adversarial. The government are, quite rightly, encouraging more couples to try to resolve disputes outside of court, for example through mediation. However, the law urgently needs to be reformed to allow couples to start proceedings by agreement, with dignity and without blame.
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