"How can you have an Amicable Divorce - Whilst blaming your spouse for the breakup?"
Pop singer, Cheryl Cole’s divorce from her England football husband Ashley was finalised last week. Earlier this summer, National Newspapers reported that it would be “clean, swift, amicable and smooth”. And yet the divorce papers filed on her behalf were said to cite the reason for the breakup of the marriage as being Ashley Cole's "unreasonable behaviour".
If Cheryl truly wanted an amicable and smooth divorce, Ashley may have wondered why irreconcilable differences or the like wasn’t cited as the reason for the divorce. Few like to be accused of behaving so badly that their partner cannot ‘reasonably’ be expected to live with them.
Divorce in England & Wales is based on a marriage having "broken down irretrievably”
Every so often, at my family law practice in Bath & Bristol, I am approached by clients who say they want a divorce based on "irreconcilable differences". They are in an unhappy marriage and just want to bring it to an end. I explain that it is not possible to obtain a divorce based on "irreconcilable differences" in the divorce courts of England and Wales.
Divorce in England & Wales is based on a marriage having "broken down irretrievably ". But there is a complication. This breakdown must be proved by evidencing only one of five "facts" laid down by the law. They are Adultery, Unreasonable Behaviour, Desertion, Two years’ separation with consent and Five years’ separation without consent.
Three of these methods of proof - Desertion, Two (with consent) and Five years’ separation - involve a considerable period of delay (at least two years) before a divorce is possible at all. Similarly, adultery can only be relied upon if it too has taken place. As the latest published figures (2008) from the Office of National Statistics on divorce rates in England & Wales show, this means unreasonable behaviour is the method of choice for most couples in cases where no adultery can be proved and a divorce is wanted sooner rather than later. Not a new revelation but one that has again encouraged family law practitioners to call for reform to the current divorce law
I recently worked with a husband from Bath who was separating from his wife. They had decided their marriage had irretrievably broken down. To help them work through the legal, financial and practical issues arising from their decision, they adopted the dispute resolution process known as Collaborative Law Practice. At a face to face meeting between them, her collaborative family solicitor and I, we discussed how to prove that the marriage had irretrievably broken down for the purposes of a divorce. The lawyers helped the husband and the wife together draft allegations of the unreasonable behaviour that were not unnecessarily confrontational and yet fulfilled the requirements of a District Judge sitting in the Bath Divorce Court. A task not so easily done at a distance
Despite the apparent fault based divorce process, the approach of collaborative law enabled this divorcing couple to meet their goal and achieve an amicable divorce.
My practice, at Sharp Family Law in Bath and Bristol, is devoted to helping separating and divorcing couples to find creative solutions to their issues, which with the help and support of the required professional at an affordable cost, are crafted by them - and not the divorce courts. For a free copy of “A Client’s Guide to Collaborative Divorce” contact me, Richard Sharp on +44 (0)1225 870336 or email me at richard@sharpfamilylaw.com
Having practiced as a solicitor in the specialised field of Family Law and Divorce Court litigation for
Hi Richard,
In Canada, the law is slightly different. You can obtain a divorce on the basis of adultery (but you have to prove it), physical or emotional abuse, or separation for more than one year. Having practiced family law for over 20 years, I think I have only done one or two divorces on the basis of abuse or adultery. The vast majority of cases are done on the basis of a separation for more than one year. In most cases, a wait of one year is not too long to wait. The date of separation can be an issue to discuss but it is possible to have separated (thus starting the clock) but continue to reside under the same roof. For example, if one person says to the other person "this marriage is over", that is the date of separation (generally).
Thanks for this blog. Always interesting!
Brian Galbraith
Lawyer
Barrie, Ontario, Canada
An amicable divorce can have a lot to do with choosing a divorce lawyer. In Sydney Australia there appear to be some lawyers who inflame divorce proceedings and clog the courts. Their ongoing fees, supposedly on behalf of the client, means they are unfortunately the only winner.
Your article includes the sentence "The lawyers helped the husband and the wife together draft allegations of the unreasonable behaviour that were not unnecessarily confrontational and yet fulfilled the requirements of a District Judge". This shows a sensible lawyer and not a selfish one. Well done.
The best thing to do in a divorce is to forget about whose fault it is. If a person wants to ruminate on fault, it's best to talk to a therapist. I have seen many divorces in Chicago which have needlessly turned into drawn out fights over child custody and other divorce matters. Whether seeking a divorce in Chicago or elsewhere, the best option is to focus on a non-revenge oriented goal.