Of divorce… and saints and sinners.


I’ve been practising family law for some time now and there is one aspect of the divorce process in the English jurisdiction that I have never understood.  This is the requirement for one spouse to blame the other spouse entirely for the breakdown of the marriage. There is the option to wait for a period of at least two years of separation and not plead fault but most people, once they accept that a marriage is over, want to sort out the divorce as quickly as possible.  It means that, even in the most amicable of divorces, one spouse must portray themselves as the Saint and one must be cast as the Sinner.

So, for example, the wife (the Petitioner) who lodges the divorce petition cannot, for instance, say about the Respondent husband :

The Petitioner likes the matrimonial home to be tidy.  Really tidy.  The Petitioner has always been like this since she was a little girl.  Unfortunately, the Respondent is a bit of a slob.  He leaves his underpants on the bedroom floor.  The Petitioner finds this really annoying and just cannot let it go without comment which often leads to arguments and bad feeling. Sometimes the kids will hear these arguments and both the Petitioner and Respondent will feel bad about this afterwards.  The Respondent will often point out to the Petitioner that leaving his underpants on the bedroom floor is hardly criminal  in the scheme of things.  The Respondent will say to the Petitioner: “I work hard, I don’t gamble, I don’t drink (much), I don’t have affairs, and I think the kids really love me.  Can’t you just learn to live with the fact that I leave my underpants on the bedroom floor?  Your obsessive neatness drives me nuts!”  Unfortunately, the Petitioner cannot live like this and she has gone to counselling and been told she has OCD issues but that is just the way it is.  The Petitioner knows deep down that the Respondent is actually quite nice, even though he is an awful slob, and is a good father but concludes it is probably a sad case of ‘six of one and half a dozen of the other’.”

Instead, the Wife must say something like this:

The Petitioner ensures at all times that the matrimonial home is a pleasant and welcoming environment.  She will go to great lenghts to ensure high levels of cleanliness and order throughout every part of the home. The Respondent deliberately leaves his underpants on the bedroom floor despite knowing full well the profoundly negative impact of such behaviour on the Petitioner including: emotional distress, lack of sleep,  mental anguish, and loss of libido.  These episodes occur nightly and when the Petitioner requests that the Respondent modify his behaviour by placing his underwear in the appropriate storage facility, she is met by the Respondent’s raised voice and his attempts to diminish the importance of his malfeasance which in itself is designed to undermine the Petitioner’s self-esteem and has caused her to require extensive counselling.  The children overhear the Respondent’s raised voice and the Petitioner is very worried about the effect this is having on the children.

The problems with requiring the alleging of fault in such uncompromising terms are, in my view, as follows:

  1. Family lawyers are often being bashed over the head for being adversarial and aggressive.  They do this, say their many critics, to inflate their fees by promoting bad feeling between the parties and thereby delaying settlement.  And yet, the law requires one spouse to start the divorce process by putting the boot into the other.  Is it any wonder that the other spouse responds in kind?
  2. When the spouses are required to start the process by thinking in terms of ‘fault’ it can make it difficult to encourage them to think more positively about their future roles and responsibilities in bringing up their children.  The battle lines have often been drawn at the divorce petition stage.  The children are going to suffer as a result.
  3. Once you get off to a bad start in the divorce petition, which often includes reference to financial mishandling or control, it is hard to get spouses to drop their mistrust and identify grounds for common interests and agreement on financial matters.  This greatly increases the costs of settling.
  4. The UK government has recently put its weight behind the promotion of mediation to resolve family disputes upon divorce and separation.  Please show me one mediator who starts off the mediation process by asking: “Right, just so I can get my bearings, which one of you is to blame for all of this?”  If the UK government want to shape public policy on the adoption of mediation and collaborative law, it needs to amend the divorce legislation pretty damn quick.
  5. On a broader level, it seems to me to deny to spouses the dignity they should be accorded by the law which is to accept in many cases that a marriage has come to an end and two sensible people, in possession of all their faculties recognise it is not the sole fault of one person.  Why should a couple who are capable of an amicable parting be required to regress to the adversarial behaviour and language of the school playground in the divorce petition?

I am aware that some of the defenders of fault-based divorce may fear that it will become too easy to divorce and that the institution of marriage will be somehow undermined if fault is removed.  My solution would be to keep fault-based divorce for those cases where it is felt appropriate to plead bad behaviour.  But, for those spouses who want an amicable process; for those lawyers who wish to promote non-adversarial models of dispute resolution; for those critics who think lawyers sow marital discord in order to line their own pockets, please give us the option to select a no-fault divorce.

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  1. Jonathan James’s avatar

    I’ve always maintained that writing the particulars of unreasonable behaviour requires good creative writing skills. Looks like yours are finely honed!



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