DIY Divorce – is it a good option for you?

The new divorce petition was introduced in August 2017. The form is designed to be more user friendly for the lay man, and has taken out some of the legal jargon. It also incorporates detailed guidance on how to complete the form. This was in response to the court becoming inundated with people representing themselves and making mistakes on the divorce petition. 

The court is very particular about the way the Divorce Petition is completed. Even very minor mistakes will result in the petition being rejected.  We have represented many clients who have attempted to issue divorce proceedings alone, only to have the divorce petition returned to them by the court multiple times. The court can take up to 4 weeks to respond to each resubmission depending on their workload. It is almost impossible to get through on the telephone to speak to someone. These lengthy wait times can make something which should be relatively quick and straight forward a long drawn out process. Clients will come to us when they become so frustrated with the process they want us to handle it for them.

The rise in people completing divorce petitions themselves could also lead to more contentious divorces. The more contentious a divorce, the costlier they become. See our blog post on managing your divorce costs for more information on this.

There is only one ground for divorce and that is that the marriage has broken down irretrievably.  The party that starts divorce proceedings is known as the Petitioner and his or her spouse is called the Respondent.

To satisfy the Court that there has been an irretrievable breakdown, the Petitioner must prove one of the following five facts:

(a)   That the Respondent has committed adultery and the Petitioner finds it intolerable to live with the Respondent;

(b)   That the Respondent has behaved in such a way that the Petitioner cannot reasonably be expected to live with the Respondent;

(c)    That the Respondent has deserted the Petitioner for a continuous period of at least two years immediately before the grant of the divorce and the Respondent consents to a decree being granted;

(d)   That the parties of the marriage have lived apart for a continuous period of at least two years immediately before the start of the divorce and the Respondent consents to a decree being granted; or

(e)   That the parties of the marriage have lived apart for a continuous period of at least five years immediately before the start of the divorce.

“Unreasonable behaviour” is where the Respondent has behaved in such a way that the Petitioner cannot reasonably be expected to continue to live with him or her.  The test is subjective, and the Court will consider what is unreasonable to the Petitioner.  For behaviour to be unreasonable in this context it need not consist of extensive violence, drug or alcohol or other extreme behaviour.  A combination of less obviously unreasonable behaviour can be sufficient.

In England, the majority of divorce petitions are based on unreasonable behaviour. This will be the case even if there is some perceived adultery by either party. The main reason solicitors cite unreasonable behaviour more than any other ground is that it is easier to prove and more often than not uncontested.

It is very unusual for a divorce petition to be defended, in fact it happens in only 1% of cases. The recent case of Owens and Owens, was notable simply because it was a successfully contested divorce.

In Owens, Mrs Owens cited five particulars for divorce on the grounds of unreasonable behaviour. When Mr Owens responded by completing his acknowledgement of service to confirm he would be defending the petition, Mrs Owens filed a revised petition stating 27 instances of unreasonable behaviour. This lengthy list only served to further antagonise Mr Owens, which led him to vigorously defend the petition. He saw the particulars as an attack on his character. The crux of the case came down to one key point, considering the respondent’s behaviour, can the petitioner reasonably be expected to live with the respondent? For the purpose of determining reasonableness the Judge will look at the history of the marriage, but it is not necessary to include this history in the particulars. At the first court hearing the Judge, thought Mrs Owens’s particulars were ‘scraping the barrel’ and ‘at best flimsy’. The Appeal Judge to review the case refused to find that he had made any error in law over which the appeal could be upheld. Mrs Owens was therefore refused the divorce and now has to remain locked into a loveless marriage for five years, until she could issue a petition on the grounds of five years separation.

For those representing themselves, they may see the divorce petition particulars as a place to hash out some of their bitter feelings as to why the marriage ended, and in light of the Owens judgement, we would urge you to avoid making this mistake.  Completing the particulars requires a careful balancing act between convincing the court that your allegations are serious enough that you are entitled to a divorce, and avoiding antagonising the other party. As stated in the judgement, we have in effect had divorce by mutual consent for some time. Where a petition is undefended it is often granted. This is why it is so important to balance the particulars carefully, and seek to agree them with your ex where possible.

Unreasonable behaviour is favoured over adultery, as adultery is often a disputed subject which can provoke strong reactions.  It is rarely the sole reason for the marital breakdown and invites blame and accusation.  Without a solicitor’s objective guidance, it is thought that more people will cite adultery for the grounds for divorce which will in turn led to an increase in defended contentious divorces.

At Blanchards Law we know that open communication leads to quicker, simpler and cheaper divorces. Where appropriate we will endeavour to agree the divorce petition particulars with your ex or their legal representation before filing it at court.

If you would like to discuss your options regarding issuing a divorce petition, or responding to one, please telephone us on 0845 658 6639 for a free 30-minute consultation.