Getting divorced is by its very nature a stressful process. Quite often both parties may see the other one at fault, and this can be entirely understandable. However, the divorce itself is just one part of the separation process and along the way there may be other emotive issues that would potentially cause tension between the parties, such as financial and children arrangements. Therefore, adopting a conciliatory approach at the outset may help to minimise the level of distrust between the parties going forward.
To initiate the process, one of the parties to a marriage must present a petition to the court seeking a divorce. Currently, there is one ground for a divorce under English law, which is that the marriage has broken down irretrievably. To prove this, one of 5 facts must be demonstrated, these are: adultery, unreasonable behaviour, two years separation by consent, five years separation without consent or desertion. There is currently no concept of a no fault divorce.
Being presented with a petition for divorce without any warning can be a surprise. In many cases, both parties to the marriage will be aware that things are not right and therefore, as a Resolution member I will invariably advise my clients to try to agree the petition beforehand. This would entail the party who are initiating proceedings sending a petition in draft to their estranged spouse, who would have the opportunity to review it and discuss with a solicitor before agreeing the facts with the petitioner and potentially removing anything contentious. This step, although not compulsory is recommended as it can also help to encourage wider dialogue about what arrangements they would like to put in place before the legal process has even started, outside the time constraints and formality of the court process. Sometimes, a collaborative approach from the start can avoid financial and Children Act proceedings and arrangements can be tailored to the parties’ specific needs. In addition, this approach can reduce court involvement to the administrative formalities and avoid the need for confrontational hearings and expensive legal fees.
It is acknowledged that this approach may not be suitable in all cases, and sometimes divorce litigation cannot be avoided even if both parties are fully engaged in the process. However, where possible a collaborative approach to a divorce, no matter how hard this may appear at the outset, can help leave both parties in a more satisfactory position at the conclusion, both emotionally and financially.