By Divorce Solicitor, Phil Thomas
The stereotype of a divorcing couple is two people with a deep hostility for one another who wish to fight over every issue. In reality however, a significant majority of divorcing couples want to get divorced in a non-confrontational manner because they have parted amicably and wish to maintain on good terms. Furthermore, an amicable divorce can be cheaper, quicker and far less stressful for everyone involved.
Divorce law in the UK is currently being reformed to remove the need to place blame on one person. Under the current system though, this requirement still exists unless the couple has been separated for at least 2 years. In this article, we explain how it's possible to divorce amicably under the current divorce system, even without a period of separation.
The Blame Game
Currently under English law the only means of getting divorced is to demonstrate to the Court that the marriage has irretrievably broken down. To do so the Petitioner must demonstrate to the Court how this had happened.
To divorce without a period of separation, this must be because the Respondent has either committed adultery or demonstrated unreasonable behaviour (these are known as the fault-based facts). Alternatively, the couple must rely on the fact that they have been separated for 2 years (providing both people agree to the divorce), for five years (if they don't both agree) or that one person has deserted the other. These are known as the non-fault facts.
For more information, see Grounds for Divorce – Choosing the Right One.
So, under the current law in order to rely on a non-fault fact in divorce, the couple must have been separated for at least 2 years. Of course some couples don't want to wait that long. Many want their divorce to go through as quickly as possible so they can both move on with their lives.
No Fault Divorce
Legislation is currently going through parliament to reform divorce law in England and Wales to allow for no-fault divorce. This will remove the need for one person to place blame on the other for the breakdown of the marriage.
With these changes on the horizon, many couples now find themselves either waiting until they have been separated for 2 years or for the divorce law reforms to come into effect before proceeding with their divorce. However, there are ways of getting divorced quickly under current divorce law using a non-confrontational divorce approach.
Divorcing Amicably with Unreasonable Behaviour
The initial impression of unreasonable behaviour is that it is a hostile fact to rely on. Because one person has to allege unreasonable behaviour against the other, it doesn't necessarily seem to be an amicable way to divorce.
In actual fact, citing unreasonable behaviour can be one of the most effective ways to achieve a friendly divorce. It's down to the Petitioner to decide what they feel constitutes unreasonable behaviour. Some Divorce Petitions can contain serious allegations such as domestic abuse, whereas others can be far milder. For example, it could simply come down to one person not helping out with the chores, the couple not sharing a bedroom together or them not socialising together as a married couple.
An effective way of keeping things amicable is for the couple to agree the allegations of unreasonable behaviour by working on them together. The allegations must however be about the Respondent and there can be no mention of unreasonable behaviour by the Petitioner or shared unreasonable behaviour. The Courts will usually require 3-5 examples of such behaviour.
At Co-op Legal Services, we believe the best method for getting a divorce through as quickly and easily as possible is to use a non-confrontational approach. This is why we always follow the Law Society Family Law Protocols.
As part of this process, once we have prepared the Divorce Petition on behalf of the Petitioner, we will send it to the Respondent (or their Solicitor) so they can read through it and request any changes. This way, everything is open and transparent, with the Respondent getting a say. In our experience, this dramatically increases the likelihood of the divorce going through smoothly, with the Respondent returning all necessary forms, engaging positively and not defending their position.
Divorcing on the Basis of Separation
Some separating couples want to deal with the divorce amicably but not get divorced straight away, instead wanting to wait a while for personal reasons. This means that they have the option of using 2 years separation, with both parties consenting, or 5 years separation.
To be classed as living separately, the couple doesn't need to be living in separate properties, they just need to demonstrate to the Court that they have been living separately from one another. For example, they may have separate bedrooms and separate living arrangements.
For more information, see How to Divorce on the Grounds of Separation.
One reason why waiting 2 years or more may not seem practical for everyone is if they have other matters to deal with, such as dividing up the matrimonial finances. It is however possible to divide assets after separation but before divorce by entering into a Separation Agreement.
A Separation Agreement is a written agreement between a married couple, setting out how the matrimonial finances will be divided. This can be an effective tool if both people have decided the marriage has irretrievably broken down, but they want to wait to get divorced.
A Separation Agreement can be entered into either before or after the couple separates, but before they have divorced. A separation agreement can divide up assets and make provision for maintenance payments, but it cannot deal with pension sharing or Attachment Orders (as these can't be implemented until after the divorce).
Dealing with Divorce Costs Amicably
In some divorce cases, it's possible for the Petitioner to ask the Respondent to cover their divorce costs. This can be a highly contentious area and often divorces are defended purely because the Petitioner is claiming divorce costs from the Respondent.
To minimise conflict, it is sensible to discuss the issue of costs as early as possible so that an agreement can be reached over who will be paying what. There are a number of options available:
- Each person can be responsible for paying their own legal costs
- Each person can pay half of the petitioner's legal costs
- It can be included in the Divorce Petition that the respondent will pay the costs, but only in the event that they defend or delay the case
The third option can be a very useful tactic as it gives a financial incentive for the respondent to not defend or delay the case. If they do, they will be met with a large bill for the Petitioner's legal fees, whereas if they cooperate they will not have to pay anything other than their own legal costs.
These tactics can allow a couple to divorce in a non-hostile manner without having to wait for the separation, or for the new legislation for no-fault divorces to eventually come into force.