One of the most extraordinary days of my career was approximately five years ago when I had to travel to a small county court to spend the day listening to a man trying to convince a judge why his wife (my client) should not be entitled to a divorce. My client had filed a divorce petition in which she cited her husband’s unreasonable behaviour as evidence of the irretrievable breakdown of the marriage. She had had some concerns when she first instructed me that her husband might try to make the divorce difficult and unfortunately she was right.
The husband defended the divorce and stated he did not believe the marriage had irretrievably broken down. His case was that although he had done the things outlined in my client’s divorce petition, my client was so 'awful' that it was not unreasonable for him to do those things and effectively, he said, she had forced him into behaving inappropriately by being a bad wife.
Despite some rather clear judicial encouragement at the first directions hearing, the husband refused to withdraw his defence and consent to the divorce proceeding. He went through various firms of solicitors before ultimately representing himself at the trial in respect of the divorce. What followed was a bizarre and expensive trial whereby this man had to try to convince the Court of his position. As he was a litigant in person this also meant that my client had to endure being cross-examined by her estranged husband and was forced to answer questions from her husband about intimate details of their marriage in front of the Court. Whilst my client was extremely dignified in her evidence it was a difficult and uncomfortable experience for her and in a marriage where she alleged there had been instances of controlling behaviour and domestic violence, she was put in a position that, in my view, the Court should have been striving to protect her from. Fortunately, there are now clear rules to protect vulnerable witnesses when giving evidence in family law proceedings and it is unlikely that the husband would have been allowed to directly cross-examine his wife had those rules been in place at the time of my client’s case.
If that same client were looking to get divorced now then no-fault divorce would transform her experience. No detailed reasons for the breakdown of the marriage are required; it is enough to simply confirm that a marriage has irretrievably broken down. The grounds for objecting to a divorce petition are extremely limited and relate to legal technicalities rather than the respondent’s subjective views. For my former client that would have been a revelation. Her defended divorce process took almost a year to conclude. That is a year during which she had to endure correspondence from her husband’s solicitors (and subsequently her husband in person) telling her that she was wrong, the marriage had not broken down and she would not get a divorce. Although I was able to provide advice and reassurance throughout the process it was understandably extremely stressful for her, as was giving evidence in a small county court courtroom where she and her husband were separated by only a matter of metres.
Going forward it is a huge relief to know that clients will no longer be put in such uncomfortable and inappropriate positions. The new law should help to give people who have felt controlled in their relationships the confidence to end their marriages, knowing that the law is now on their side and they will no longer be forced to provide intimate details of their marriage to a judge.
In my former client’s case, she technically 'won' as the Court found that her marriage had irretrievably broken down, her divorce petition could proceed and her husband was ordered to pay her costs of the defended divorce process, but it felt like somewhat of a hollow victory after a year of stress and anxiety. There is no doubt in my mind that no-fault divorce is better for all concerned and will help to ensure that conflict between separating couples is kept to a minimum from the outset.