“My husband will fight a divorce” says my new client.
“Clients always say that” I reply. “He won’t. They never do. Hardly anyone ever defends a divorce”.
“You don’t know my husband” says the client, with a grimace.
“Clients always say that too. He won’t fight it.” I say.
I have lost count of the number of times that I have had the above conversation with clients who want to divorce. Although the client above is woman, I have the same conversation with male clients too.
The reality is that the number of cases where a Respondent defend (i.e. contests) the divorce is, in the words of a senior judge “vanishingly small”. I can count the number of defended divorces that I have dealt with in the last 20 years on one hand. I can count the numbers of defended divorces that have dealt with since the turn of the century on one finger).
It is not difficult to divorce, something that people who oppose the introduction on no-fault divorce doesn’t seem to grasp. You just have to be unpleasant about it. Most divorces go ahead on the “fact” of the Respondent’s unreasonable behaviour. This is not a difficult test to pass. I usually reckon that I could draft an unreasonable behaviour divorce petition for either party to a marriage, regardless of whether their marriage is happy or not. There is always something. No-one is perfect.
The reality is that I see very few divorces where I could confidently say that the breakdown of the marriage is entirely one side’s fault. I suspect that in most cases there has probably been unreasonable behaviour on both sides, although I would not suggest that “guilt” is necessarily equal. Often the unreasonable behaviour or adultery alleged is a symptom of the breakdown of the marriage, rather than its case. A lot of adultery divorces involve adultery that did not begin until after the marriage had broken down and the parties had separated. Surprisingly large numbers of people do not realise that if you separate from your spouse and then form a sexual relationship with a person of the opposite sex while still married, this is still adultery.
Inevitably ego and a desire not to be seen as the party who is at fault plays a part and that is why some respondents threaten to defend divorces. However, reality kicks in. They realise that the chances of successfully defending an unreasonable behaviour divorce are incredibly low and that the cost of doing so is vast. They usually want a divorce anyway, or they come to accept that the marriage had broken down and needs to be ended. There are a small number of people who don’t co-operate and ignore the divorce papers when they arrive from the court, but even then it is not difficult to push ahead with the divorce once we can prove that they have received the divorce papers.
The reality is that if it’s over, it’s over and the other side will eventually accept the reality of their situation and start co-operating.
7 January 2017