Imagine the scene. A client comes to see me for the first time, clutching divorce papers which have turned up in the post that morning. He is outraged. His wife has issued a petition seeking a divorce on the grounds of his unreasonable behaviour.
I read the petition. It contains a lengthy list of allegation of unreasonable behaviour, some of them quite unpleasant. The client is apoplectic. “It’s all lies” he says. And then I take a deep breath and I tell him that it doesn’t matter.
The reality is that it make no difference (from a legal perspective) who divorces who. It makes no difference to the outcome of any financial proceedings or any disputes about the couple’s children. The husband can deny behaving unreasonably, but can still agree not to defend the divorce petition. Doing so will not prejudice his legal position when we sort out what happens about the house, pension, maintenance or the children.
Not surprisingly a lot of clients don’t like to be told this. The husband is no exception; he wants justice and allowing her to divorce him isn’t fair or just as far as he is concerned. Morally he may have a point, but legally speaking he is heading up a blind alley. I carefully explain to him that the court process in a divorce is not about a search for the truth. The District Judge knows all too well that marriages break down for a variety of reasons, and what is in the divorce papers is not necessarily what caused the marriage to fall part.
The husband wants to defend. He does not care what it costs. I explain to him that defending divorce proceedings is likely to cost between £5,000 and £10,000, possibly more and that if he loses, he is likely to be ordered to pay his wife’s costs, which will be the same again. I explain to him that he will be just as divorced at the end of the divorce, and that it would be sensible to save his money and concentrate on resolving financial issues. Facing a possible legal bill of £20,000 just to fight the divorce, the husband sits there in shocked silence. How can this be fair?
The above scenario is all too common. I have this conversation with about half of my divorce clients. Of course, it’s not always the husband. It can just as easily be the wife who has received the divorce papers and is horrified at what is being said about her. It can also just as easily be an adultery petition; a lot of people cannot understand that the fact they formed a new relationship after they separated still gives their spouse the right to divorce them for adultery.
At this point, one of two things will happen. Most clients will accept the advice, and will instruct me to file the Acknowledgement stating that they deny behaving unreasonably, but they are not going to fight the divorce. It may be necessary for me to negotiate whether or not he pays anything towards his wife’s divorce costs, but at worst that is unlikely to exceed £1,000.
A small number will refuse to accept what they are told. They feel that it is morally wrong and don’t accept my assurances that whilst it may be morally wrong, it is not legally wrong. They tell me that they need a solicitor who will “fight their corner”. I explain that I will fight their corner, but that defending divorce proceedings is at best futile and at worst risky, as well as being cripplingly expensive. They then depart, hoping to find a solicitor who will tell them what they want to hear, rather than what they need to hear.
It’s hard to blame them. Solicitors are trained to manage their clients’ expectations, but sometimes that causes a client to conclude that because they find the advice unpalatable, the solicitor must be wrong. The client is allowing his emotions to cloud his judgement. His friends are probably telling him he should fight the divorce. His solicitors’ job is to help him to see the issue from an objective perspective and to only fight the fights that need to be fought.
The trouble is that the divorce laws in England and Wales are hopelessly out of date. The current laws were introduced in 1973. That’s 39 years ago, during which time our society has changed beyond all recognition. The Major government had a go at divorce reform in the mid ‘90’s, which would have introduced no-fault divorce, but the resulting law was a hopeless mess and was quietly killed off by Tony Blair.
Social conservatives argue that no fault divorce will weaken marriage. They cannot see that marriages will continue to break down regardless. They seem to be unaware of the damage that a fault-based system causes. It promotes conflict at a time when couples should be trying to work together to find a fair solution that meets their needs and the needs of their children. It hampers their ability to co-operate in relation to their children. The reality is that the way in which we get divorced damages our society more than divorce itself.