Pouring Oil on Troubled Waters
Rebecca Bell - Family Law Partner
For advice on separation, divorce and financial settlements contact me on 01580 762248 or email info@pengelly-rylands.co.uk.
You may have read in the tabloids about 'celebrity divorces' in which parties are divorcing on the grounds of an ‘irretrievable breakdown of the marriage'. However, this is not the whole story. Everyone who divorces, whether they are Cheryl Cole or Cheryl Bloggs, must prove that the marriage has irretrievably broken down. What the papers do not say is that there must also be a more detailed reason, known as a 'fact'.
Many clients report to me that their marriage has irretrievably broken down and are surprised to find that this is insufficient to found a divorce straight away. There must be some allegation of fault by one party (the Petitioner) against the other (the Respondent), such as the Respondent’s adultery or their unreasonable behaviour. Sometimes clients are reluctant to make allegations of fault, preferring to concentrate on the fact that the marriage has ended and trying to sort out the issues as amicably as possible without dwelling on who was responsible. The only way to remove fault is to separate, and then wait for 2 years before petitioning for a divorce, when it can go ahead without proving any ‘fact’, as long as the other party agrees to it. The financial settlement and matters relating to children can, however, be resolved on separation without having to wait for the 2 years to expire.
Not everyone wishes to wait 2 years for a divorce, so one based on fault is often the only way forward. However, the Law Society and the family law organisation Resolution are both keen to try to calm what can be an antagonistic situation by suggesting that, if behaviour must be alleged, the Petitioner should try to keep it as mild as possible and allow the Respondent to see the allegations and give them the chance to take legal advice and propose amendments to the allegations. If the Respondent believes that some of them are unfair, this can be put to the Petitioner, who may then agree to compromise on them so that the divorce can proceed undefended. Defended divorces are extremely rare, as they are very expensive and lengthy. It is therefore in both parties’ interests to try to reach an agreement.
As members of Resolution, we promote its values, and those of the Law Society. We believe that if a compromise can be reached at the first stage of a divorce, there is a greater chance that reasonable communication between the parties can be maintained, enabling them to reach a mutually acceptable financial settlement and, most importantly, to provide the best outcome in unhappy circumstances for any children of the family.
Published February 2011
