Grounds for Divorce – Why are the English Courts making it harder to divorce?

Paul Read, Paradigm Family Law, Fitzroy Square, London

If Boris Johnson marries his fiancé, Carrie Symonds whilst he is still Prime Minister, then he will become only the second Prime Minister ever to have divorced and remarried whilst holding that office.

The first Prime Minister to do this was Augustus Fitzroy (3rd Duke of Grafton) who divorced the Hon Anne Liddell in 1769 and married Elizabeth Wrottesley three months later.

Augustus and Anne were married for 13 years before divorcing. This is noteworthy because according to the Office for National Statistics, the current average length of a marriage between two heterosexual people ending in divorce is 12.2 years. The duration of the Fitzroy’s marriage was therefore remarkably modern. However, they did not have a modern divorce. At the time, the only way to secure a divorce was by Private Act of Parliament and whilst that process was evidently available to Augustus, Duke of Grafton – it was not available to the vast majority of people, who simply had to remain married.

The state’s attitude to divorce in 1769 appears to modern observers almost laughably restricted. One might suggest it was socially regressive state control at it’s very worst.

But what will people make of our current system in years to come? After all, people wishing to divorce currently have 2 choices – Delay or “Mudslinging.”

Furthermore, there is anecdotal evidence that the Courts may be raising the bar to make it increasingly difficult to secure a divorce based on behavior. The effect of this is that divorcing people must sling more mud. It is a terribly regressive approach. District Judges and Family Court Officers please take note of what follows and remember it when considering divorce petitions at the very outset.

Grounds for Divorce – How the system currently works

In order to petition (apply) for a divorce, you need to believe that your relationship has irretrievably broken down. That is the test. You can use one of only 5 “facts” (reasons) to support this. These are as follows:

  • Your spouse has committed adultery (and they admit it, or you can prove it).
  • Your spouse’s behavior has been unreasonable.
  • You have been separated from your spouse for 2 years and your spouse agrees to divorce.
  • You have been separated from your spouse for 5 years, in which case it doesn’t matter whether your spouse agrees to divorce or not.
  • Your spouse has deserted you (which has quite a technical meaning and is actually very rare).

Mr & Mrs Smith

The Smith’s have been married for 23 years. They have an adult child who has long since flown the nest and they are financially comfortable. They have also fallen completely out of love and both wish to divorce and try to enjoy a second lease of life independently of each other. They do not rule out the possibility of future love interests. There is good will between the parties and a common acceptance that their paths have simply diverged. There is no adultery. The Smiths simply need to secure a divorce and record a sensible financial settlement and move on with their lives.

It is agreed that Mr Smith will take the lead with the process and he consults lawyers. Mr Smith is able to confirm that he believes the marriage has irretrievably broken down. He then discovers that he must either base the divorce on allegations of his wife’s unreasonable behavior or wait 2 years at minimum before beginning the process.

Mrs and Mr Smith are both in their late 60s and neither are keen on delay.

That means that in order to divorce, Mr Smith must make a list of Mrs Smith’s behavior so that it is seen to be unreasonable and to such an extent that it appears reasonable to a court that the marriage has irretrievably broken down.

Faced with a situation like this, the key has always been to formulate a commentary on Mrs Smith’s behavior which goes just far enough to secure the divorce but is not a “hatchet job” on Mrs Smith’s character. Remember, these are people who have shared a life together and bear each other no ill will. They simply do not wish to share their lives any more!

The Petitioner may say, for example, “The Respondent has failed to communicate properly with me.” Rather than, “The Respondent hasn’t said anything remotely interesting since 1985 and I can’t stand it anymore…”

Getting these comments on behavior right can be tricky. It has – until very recently  – appeared that Judges used their discretion (to look at a divorce petition subjectively) to allow divorces to proceed where the parties were clearly trying not to be ruthlessly critical.

I fear that may be changing.

I have been involved with cases recently where behavior petitions have been issued by the other side and rejected by the court for not meeting the threshold. In other words, not demonstrating to a sufficient threshold that the petitioner believed the marriage had irretrievably broken down. Until recently this was almost unheard of. I have heard of many more recent examples from colleagues in the profession.

Turning divorce into an act of aggression

In each of the above cases the petitioner had to resubmit their petition with a more aggressive, confrontational and longer list of unreasonable behavior. In one of those cases this broke the delicate tolerance which had existed between the parties and there is a serious risk that court proceedings are now on the cards to resolve finance and child contact issues.

We are promised law reform in The Divorce, Dissolution and Separation Bill – due to become law in Autumn this year. All being well.

In the meantime, it is genuinely worrying that the family courts seem to be taking a much harsher approach to divorce on the grounds of behavior and it is something parties should consider very early on to avoid the petition becoming a blue touch paper.

Fitzroy Square is home to Paradigm Family Law in London. The Square is named after the family of Augustus Fitzroy.  


Paradigm Family Law have a team of experienced lawyers to help guide you through the process of divorce, just waiting to hear from you.

If you would like more details on this or want to discuss your family law matter, please do not hesitate to contact James, Frank, Evelyn or Paul. Paradigm Family Law offers a free initial consultation and our fixed fee solutions cover all aspects of family law from start to finish. You can call us on 01904 217225 or email us – [email protected].