Many Divorces are based on lies, but you can’t defend them.
Countless times it turns out in mediation that two people, who experienced the same event, interpreted it totally differently. Each understood what was happening in their own way, then afterwards, thought about it and overlaid it with different layers of meaning from their reflections about what happened. The most common issue in the early stages of family breakdown is whose fault it was that the marriage broke down. One may say it was the affair, but the other may say it was the constant rows, their poor relationship that pre-dated the affair. It will often feel desperately important to people to feel their conscience is clear and the break up wasn’t their fault. Many people find it impossible to believe that if it’s not your fault you don’t get a better settlement. Of course, they may think if they make the other person feel bad enough, guilt may help them to a greater share of the money. That is usually not the case.
Whilst defended divorces are rare these days they do still happen. The person who defends usually does so because they feel the divorce petition is a lie. They usually agree the marriage is over and then they usually cross petition, as they want the divorce to be granted on the basis the other person was to blame, and so their cross petition sets out all the reasons their spouse has actually caused the marriage to end.
In a divorce based on fault not separation, the petition has to be based on adultery or unreasonable behaviour and in either case it has to be the cause of the breakdown of the marriage in the sense of make that particular petitioner feel they can’t live with that respondent. So it is very personal to them and doesn’t have to reach a level of proof such that a reasonable person would find it intolerable to live with the petitioner. If the petitioner has forgiven the behaviour or adultery, then it cannot be used in the petition, so it’s no good dragging up ancient history. Forgiven has a specific meaning and if you have lived with the respondent for a period or periods together totalling six months or more since you found out about the behaviour or adultery, then you cannot rely on it in your divorce petition. This can cause a lot of injustice. So a spouse who tried hard to forgive someone for committing adultery and struggled on in the marriage but later called it a day, may not be able to rely on that adultery to divorce their spouse, unless it is continuing or continued to within six months of the petition. It doesn’t matter that it was actually the reason for the break-down. To add insult to injury, if after separation the injured party then has an affair, most people would say that didn’t cause the marriage break-down, but it is still legally adultery and what’s more it may well be the only adultery that can be used in the petition, as it hasn’t been legally forgiven! To make it even worse, if you are the respondent you can find yourself facing an order you pay the divorce costs! So plenty of room for unfairness and dispute.
Where petitions based on adultery are concerned, you only need a sentence saying the respondent has committed adultery with someone the respondent doesn’t name, they find it intolerable to live with the respondent and seek a divorce. You can no longer muck rake by dragging in the name of the person who you think they committed adultery with, so no more co-respondents.
The other fault-based petition is founded on unreasonable behaviour and more detail has to be given to justify the divorce. There is an old rule of thumb of half a side of A4 and a few paragraphs. So typically a few lines of general outline, followed by the first, the worst and the last, then a concluding paragraph saying the effect the unreasonable behaviour has had on the respondent, for example, made them depressed, miserable, sleepless, feel deeply unhappy and unloved – and importantly that the marriage is over and they seek to end it with a divorce.
In those rare cases when divorces are defended, the court does everything in its power to stop it. We at Focus Mediation have over our fifteen years and approaching ten thousand cases, mediated a number of defended divorces with cross petitions. They usually end in the same way. Either and usually both the petition and cross petition is amended to remove the most offensive allegations, then the divorce proceeds on the basis of both petition and cross petition, with usually no order for costs. Normally the costs by then will be £3,000 – £10,000 between the parties, money completely down the drain and each will usually pay their own costs. Many hours will be spent arguing over the detail of the reasons for the divorce, because it feels so important to that couple, but not actually because it is important in any way that matters.
Sometimes the respondent may feel that the allegations touch on and criticise their handling of the children and might cause troubles over them having the children if not challenged. There is even a way around this. You can say the divorce particulars are not agreed, but you’ll allow the divorce to proceed on the basis that the fact you have not defended it does not mean you accept the petition and the fact it wasn’t defended cannot be relied on as evidence it was true in the context of any other proceedings. Job done, you can produce that letter at court if you need to in those other proceedings if such ever occur. Then it’s likely the court would make you plead that behaviour again and prove it in those other proceedings.
Judges hate defended divorces with a passion and they do all they can to stop them. If you defend you can expect a drubbing at court, even though you may feel outraged at what is happening to you, the judge will be just as outraged you could defend a divorce in their court, so not much sympathy there.
So in conclusion, divorce petitions must follow technical rules and cannot just be about what you feel is the reason for the divorce. Often they will be about something different, but it qualifies as the legal grounds for the divorce, which may not be the real reason your marriage ended at all. This may make you mad and upset, but as we all know the Law’s an ass, so don’t expect the judge to agree with you or think you’ll get “Justice” because you won’t. Sorry, but don’t be silly! You can’t go to court for justice on your divorce, who cares whose fault it is? Only you. The judge will not let you have your day in court, not if they can help it.
The answer is to change the Law to stop all this, they were going to do that many moons ago, but dropped it. The tabloids were out-raged that people would just get divorced for no reason; the government had to drop the Bill. So here we are still with antiquated divorce laws that make a sad situation worse and make people wash their dirty linen in public, so to speak. Mad, bad and stupid divorce laws do nothing to ease the path of broken hearts to a civilised divorce. They encourage arguments then deny the right of reply and the use of the courts to establish truth. So many divorces are based on lies and lawyers can do nothing about it, save advise people to bite the bullet and let it go – along with the marriage.
Mediation at least helps you end it with dignity and kindness.