How to use ‘fault’ in your divorce

The Divorce, Dissolution and Separation Bill had its second reading in The Commons on 25 June 2019. This Bill, if passed, will pave the way to ‘no fault’ divorce. Last time on the blog we looked at what this might mean for you and the nature of your divorce proceedings. Check it out here.   It will take time for the Bill to be passed into law, and maybe you don’t have time to wait. You may want or need to start divorce proceedings now, without waiting for the new system, or for two or five years’ separation.   In that case, you need to look at using fault in your divorce proceedings.  

The fault-based facts

Currently, the divorce petitioner needs to prove one of five ‘facts’ to demonstrate the marriage has broken down irretrievably. There are two fault-based facts – let’s look at these in turn:

Adultery

You must be able to prove (or they have to confirm) that your spouse had sexual intercourse with someone of the opposite sex. You must start divorce proceedings within six months of learning about the adultery. Adultery cannot be used as a grounds for divorce in same-sex marriages or civil partnerships. You cannot use the adultery fact as petitioner in cases of your own adultery.  

Unreasonable behaviour

Unreasonable behaviour is the most common fact used to demonstrate marriage breakdown in England and Wales. You will need to cite a few examples of behaviour that show you cannot reasonably be expected to continue living with and being married to your spouse. These may be highly serious incidents, such as physical violence, or milder behaviours, such as an obsessive hobby or lack of socialising. Your spouse doesn’t have to confirm or agree to your allegations, which can make this an easier fact to prove than adultery.    

Work together to establish fault

If it is safe and possible to do so, it’s a smart decision to work with your soon-to-be-ex-husband to agree what the divorce petition will say. While Dirty Den handing Angie a divorce petition on Christmas Day pulled in record viewing figures for Eastenders, it’s best to leave the drama to the TV!   In reality, petitioning your spouse for divorce without their prior knowledge may have huge emotional and financial costs as chaos ensues.

Collaboration will save costs

Of course, this may be the safest option for you emotionally and financially. If you aren’t sure, take legal advice before you make a decision either way.   You can collaborate to agree who is the petitioner and who is the respondent. In the eyes of the law, the respondent is the one at fault. It is the respondent’s behaviours or adultery you will cite.   If your relationship is amicable enough, you can do this together, perhaps with the help of a mediator. Or you can agree through your solicitors (a more  expensive option). You only need to get your petition past the legal threshold, it is not the place to lay your soul bare or score points. For this reason, some Ladies Who Leave agree to be respondents in divorce proceedings, accepting fault themselves. This can mean the divorce proceeds more smoothly.  

If you can’t work together

For some people, collaboration is simply not possible. This is especially true in high conflict situations. If your soon-to-be-ex-husband is abusive or manipulative, it is not wise to sit down together to agree the petition. Or it may be that your ex simply refuses to engage. If this is your situation, you can still proceed with divorce on grounds of unreasonable behaviour.   Remember your main objective is to get your divorce through the courts. You may choose to cite milder examples of unreasonable behaviour to keep the heat in your situation as low as possible.  

A word about conduct

Does the judge care how badly your soon-to-be-ex-husband has behaved? Usually, no. In rare instances the courts will look at the conduct of one of the parties in their consideration of the divorce case and financial arrangements. Under s25(2)(g) Matrimonial Causes Act 1973, the court may have regard to the conduct of each of the parties, if that conduct is such that it would in the opinion of the court be inequitable to disregard it;  

An example might be if one party has gambled away matrimonial assets, to the extent that it would be unfair for the other party to have to share what’s left. Or extreme domestic abuse situations, which result in one party being unable to work due to physical or mental incapacity caused by the abuse.   You can see that these are extreme situations. In most divorce cases the conduct of the parties is not examined beyond whether it passes the legal threshold. So examples of your soon-to-ex-husband parenting badly, being irresponsible with money, infidelity or most domestic abuse would not be seen as a ‘conduct case’, whatever difficulties the behaviour has brought to your life.  

Your emotions and divorce

Divorce is a highly emotive, difficult process. If your ex has behaved badly you will be left feeling bruised and hurt. It is tempting to use the divorce petition to unleash your feelings – to ‘let them have it’. Don’t. As hard as it is to hear, unless yours is a conduct case as described above, the judge is processing paperwork, not making judgements on behaviour. The judge has no interest in your story, your divorce is simply one of many crossing their desk.  

It is so important for you to be heard, for your feelings to be validated and for you to be able to process what’s happening. But the divorce petition is not the place for this. That’s where seeking support from a coach or a therapist will help.  

Communication that doesn’t become all about fault

Often clients come to me because they want help navigating the nuts and bolts of divorce – making sense of the whole process to avoid additional upset or financial costs.   And/or they might want help sense-checking their own emotions and decision-making. They want a safe, knowledgeable place to turn when their soon-to-be-ex-husband sends inflammatory texts or makes unreasonable demands.

Often separations can be high conflict at times – there can be flare-ups as you navigate the process.   I can help you break the whole thing into manageable steps, help you to move forward rather than look back, help you to keep your end goal in sight. What does this look like in practice?   Sometimes I help clients reply to texts or emails so they can get closer to their divorce without being drawn into mind-games. Sometimes I talk them down from rage and resentment, so they can respond in a smart way rather than react blindly to the hurt inflicted.   My clients tell me this is one of the most important aspects of the work I do. It means they get through divorce more calmly, and usually more cost-effectively as they avoid expensive legal wrangling.  

You’re not alone

So many women tell me they find separation and divorce a lonely process. It doesn’t have to be like that. Coming together with others in similar situations to hear their stories can help you realise you’re not alone. Having a safe space to vent and get trusted advice can also help you work through (inevitable and valid) difficult feelings.   That’s why I run The Absolute Academy.

The Absolute Academy helps women along their unique divorce journey, whether they’re working with solicitors or self-representing. The fault-based system can be crazy-making even if you and your soon-to-be-ex-husband were amicable at the start of the divorce. It’s easy to buy into being told it’s all your fault. It’s not.  

Whilst I absolutely believe in the benefits of looking at ourselves and taking responsibility for our part in the relationship (both good and not so good), I don’t advocate self-flagellation either.   The Absolute Academy is a place you can be totally yourself, in the company of others who get it, and with me on hand every step of the way, offering emotional support and up-to-date legal information to help make sense of it all.  

Divorce not vengeance

The fault-based system is the one we have in place right now, and it might be the one you need to work with to get your divorce done. But remember your aim in all this – to get a fresh start, to live life on your own terms, to actually get your decree absolute. Fault-based divorce is simply a means to an end.   Please don’t petition for divorce with revenge in mind, however badly behaved your soon-to-be-ex-husband. I don’t say this to let them off the hook, I say it to help you avoid a whole heap of emotional grief and huge solicitor’s bills.

The courts are not the place to work through your emotions, even if you have money to burn. The courts will give you the piece of paper you need. That’s it.   The rest of it – the decision to move forward, the courage to build the life you want – that comes from you. But you don’t have to do it alone.   Whatever your circumstances or budget, if you want help getting through your divorce, I can help. Start by booking in a chat and we can take it from there.

The Divorce Alchemist

Emma Heptonstall, the Divorce Alchemist is author of the Amazon best selling book How to be a Lady Who Leaves, the Ultimate Guide to Getting Divorce Ready. A former lawyer, Emma is a practising family mediator and founder of Get Divorce Ready the online self study and group programmes. Emma has been featured on BBC Radio, The Telegraph, the iPaper and in Marie Claire Magazine. To find out more visit www.emmaheptonstall.com

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