Introduce no-fault divorce now and remedy the shabby state of affairs caused by craven politicians
There is something particularly poignant about a defended divorce. We always advise clients not to defend a divorce petition; it never makes a difference to the way finances are decided, nor where the children are going to live.
But if your client loves (or hates) their wife or husband and there are hurtful accusations being made, it is not always easy for them to listen to dry commercial advice. So they refute the allegations in the petition and off it goes, with big costs bills and, not infrequently, media coverage that nobody wants.
A defended divorce often attracts unwanted publicity because the British press love the chance to share with their readers the details of other people’s lives.
Take Mark Howell in the Court of Appeal (CoA) last month. He was told he had behaved unreasonably and his wife had established, to the satisfaction of the court, that she should no longer be expected to live with him.
Poor Mr Howell felt obliged to engage in a humiliating debate about whether a row with his wife over her ability to read a map had been one of the nails in the coffin of his marriage. I am sure it was not, but it is all part of the ludicrous game whereby couples in this jurisdiction have limited options if they want to end their marriage before they have lived apart for two years.
As a matter of public policy, courts do not like shackling a couple together when at least one of them knows the marriage is over, so it is really no surprise that the CoA also concluded that Mr Howell had acted unreasonably and his wife had proved her case.
What a farce. And what is the solution? Introduce no-fault divorce, as lawyers have been suggesting for decades. Otherwise, unless adultery is involved, a couple has no choice but to use the factor of unreasonable behaviour, which requires a few paragraphs of, at best, unpleasant allegations about the other. This runs counter to everything we are told to achieve as divorce lawyers – keep clients out of court, save costs and concentrate on the future rather than the past.
But politicians of all parties run scared when asked to change the way the law deals with families because people have such strong views about children, religion, adultery, sexuality or families.
The lack of legal protection for cohabiting couples is a clear example of this. It is a debate that has been going on throughout my career. Without that protection, judges have taken it upon themselves to produce contorted judgments that often ignore legal principles in an attempt to remedy this shabby state of affairs.
Whatever the reason, governments continue to behave in a craven fashion – David Cameron’s stand on gay marriage excepted – with the result that humiliation is publicly heaped on a man like Mr Howell simply because his marriage has failed and he believes he can save it by denying allegations that have only been made because his wife has to play the system.