Lawyers must fix the problems with gagging orders before it is too late
It is a common misconception that parties can obtain a divorce in this country based on their ‘irreconcilable differences’. Would such a ground be welcome?
There is only one ground for divorce in England and Wales – irretrievable breakdown of marriage. To prove this breakdown, one of five facts must be relied on. Three of these five facts require parties to wait for a period of time (at least two years) before issuing proceedings. In order to divorce before such a period has elapsed one party must allege fault on the other’s part – relying on either adultery or unreasonable behaviour. This is commonly referred to as the “quickie” divorce.
In a recent high profile case, a celebrity wife divorced her famous husband after a 25 year marriage on the basis of his alleged unreasonable behaviour. While the couple separated on what they described as amicable terms, it will have been necessary for the wife to give examples of the husband’s alleged unreasonable behaviour in the divorce petition.
Behaviour particulars do not need to be extreme (they can be as anodyne as one party’s “failure to communicate constructively”) but there is still an inevitable element of blame involved. When parties view their divorce as a consensual process, neither can find it easy to be accused of behaving in such a way that their spouse felt they could no longer live with them.
It seems unfortunate that there is no form of ‘no-fault’ divorce available within 2 years of separation but there is no sign of any early change in the law. The previous Conservative government tried to bring in ‘no-fault’ divorces but tied these into a requirement for a ‘cooling-off’ period of at least a year; this law change had not been finalised before the 1997 election and was rejected by the New Labour government.
In appropriate cases we advise clients to try to agree the behaviour particulars with their spouse before the divorce petition is issued at Court. That way, the risk of the Respondent party being made to feel wholly responsible for the breakdown of the marriage is reduced.
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