Unlike Scotland, English divorce law is one of fault. Unless you want to wait either two or five years to petition for divorce, one party must be blamed for the irretrievable breakdown of a marriage either by way of their unreasonable behaviour, adultery or desertion.
UK law conflicts with The Law Society and Resolution protocol, which encourages the amicable resolution of issues surrounding separation. It forces one party to blame the other in order to convince the Court that their marriage is beyond repair and there are no prospects of a reconciliation.
In the case of Mrs Tini Owens, she petitioned for divorce on the grounds of unreasonable behaviour. Her husband challenged this saying that he felt that the marriage had not broken down and that the couple “still had a few years of old age together”. The Judge rejected the examples that Mrs Owens gave of her husband’s behaviour saying that they had been “exaggerated” and were “at best flimsy”. He said that the constant berating that Mrs Owens said she was subjected to as a result of a previous, but forgiven affair, was to be “expected in a marriage”.
What is a defended divorce?
A defended divorce is when a divorce petition is issued to the Court, and either the other person in the marriage does not accept that the relationship has broken down or does not agree that the grounds stated in divorce petition are correct.
Defended divorces are incredibly rare. Most of the time, the divorce process is a straight forward one, a paperwork process that does not involve attending Court, unless there are disputes regarding children, finances or property in the marriage.
Spouses who wish to divorce on the grounds of unreasonable behaviour are encouraged not to cite inflammatory allegations as to their spouses behaviour towards them. Respondents are frequently advised to allow a divorce to proceed undefended, specifying that they do not accept allegations made against them but do agree that the marriage has irretrievably broken down.
Most of the time, defending a divorce will be a costly and futile exercise with the Courts being reluctant to force couples to remain married.
Although generally discouraged, an aggrieved spouse might decide that defending the divorce proceedings issued by their estranged husband or wife is necessary. Those situations are few and far between and should be considered very carefully with the benefit of legal advice given the cost and emotional turmoil involved.
How can Nelsons help?
Emma Davies is a specialist family law solicitor at Nelsons.
If you need advice on separation, divorce or any other family law related matter, please contact Emma and she will be happy to discuss your circumstances in more detail and give you more information about the services that Nelsons family law solicitors can provide.
Emma can be contacted on 0800 024 1976 or via our online form.