Family Law Collaborative Divorce Blog : Bath Divorce Solicitors : Sharp Family Law : UK Collaborative Law & Family Mediation : Bristol, Swindon & Southern England

Pop singer, Cheryl Cole’s divorce from her England football husband Ashley would be “clean, swift, amicable and smooth” reported The Sun Newspaper at the end of May. 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. 

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 - Matrimonial Causes Act 1973. 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 to has taken place. 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.

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 process, the collaborative law process enabled this divorcing couple to meet their goal and achieve an amicable divorce. I am interested in hearing how others have dealt with meeting the criteria for "Unreasonable Behaviour" AND achieve an amicable divorce

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In the U.S. State of Maryland, the court may currently grant an absolute divorce on the ground of adultery, desertion, insanity, cruelty of treatment, excessively vicious conduct, 2 year separation and voluntary separation for one year. Now Montgomery County Delegate Luiz Simmons wants to add to this list, couples who go a year without having sex. The argument being that forcing couples to live apart for a period places a challenging financial burden upon them “especially if both parties must live in places large enough to accommodate children”

If enacted, the change in the law would enable couples to remain under the same roof during the one year wait for a divorce provided throughout they abstained from sex with each other.

The argument that divorcing couples should not have to live apart beyond any short “cooling off” period before being granted a divorce is not restricted to those across the pond. Last week the Office of National Statistics published the latest figures (2008) on divorce rates in England & Wales. Amongst the findings was that behaviour yet again was relied on the most to prove that a marriage had broken down irretrievably (the single ground for a divorce in England & Wales).

With adultery being the next common factor relied on, the majority of those wanting a divorce decided in 2008 to place the blame for the breakup of their marriage on their spouse. This they did by filing a petition or application for divorce based on allegations of unreasonable behaviour or adultery to prove the irretrievable break down of the marriage rather than wait at least two years to secure a divorce.

Not a new revelation but one that has again encouraged family law practitioners to call for reform to the current divorce law. Resolution is backing a system that would enable couples to divorce within a matter of months, without the need to attribute blame.

It has been argued that a two year cooling off period (in the absence of fault) protects the institution of marriage from quickie divorces or the easy divorce from couples who have merely drifted apart. But as divorcees will know, there is nothing easy about divorce. It is hard work and frequently an extremely demanding and painful experience riddled with complications way beyond the reason for the marriage break down.

As I work with separating and divorcing clients who frequently just want to maintain their self respect and dignity, secure a fair financial settlement, do what is best for their children in the circumstances, amicably resolve differences with their partner and move on with their lives, a divorce process that is fault based can be unnecessarily confrontational and out of step with the direction clients are moving towards. The time for a change has come.

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Daily Mail Newspaper began January 2010 with “Divorce Day heralds rising toll of marital strife in 2010” as a headline on the 4^th January 2010, quoting the website divorce-online.co.uk as saying that the general divorce rate would rise by 2% in 2010 with the recession taking most of the blame. It has ended the month with the headline “Divorce rate falls to 35 year low” on 29^th January 2010.

Confused? More couples do traditionally decide to divorce in the UK during the month of January than during any other month in the year, but the latest figures, published by the Office for National Statistics during the past week, show that fewer couples ended their marriages in 2008 than in any year since the divorce boom of the 1970’s.

Will 2010 be the year that bucks the falling divorce rate trend of recent years as divorce-online.co.uk predicts?. Will divorce levels rise in 2010 as a result of the strains and stresses added to marriages by the recession?. Much may depend on the relationship support that is available and offered to help couples work through their issues and decide whether staying together is an option to be explored.

In their recent article Divorce rate lowest for 29 years, the BBC quote Claire Tyler, chief executive of Relate as saying "Relationship support works, with 80% of respondents to a Relate survey, who wanted to keep their relationship together, stating they felt counselling helped to strengthen their relationship. Independent research also showed we know that 50% of separated people said they felt there were things they could have done to prevent their break-up, and they wished they'd done more."

Recently, I was approached by a Bath couple who wanted my help with the issues surrounding what they thought was their pending separation. They were anxious to find a non-contentious process as they feared a fall out between them would adversely affect their 3 year old son. That fear of how best to co- parent after parting opened an opportunity to refer my client, the husband, to Chris Mills a family consultant based in Bath. Specializing in supporting divorcing and separating couples to understand and manage the complex emotional dynamics of their separation, Chris was able to help the husband look at his situation and relationship with his wife. A few days later I received the following email

“My wife and I are going to remortgage and stay in our home. It is thanks to your caring and knowledgeable service. I cannot thank you enough”

The wand that encourages marital reconciliation may not always be available nor work its magic but as the BBC reported in their article more marriages might be saved with with the involvement of th right professional. In the About Section of this blog are listed two mental health professionals who have been accredited by Resolution to work in the specialized field of divorce and separation.  

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