Extract from “Grounds For Divorce” – Davis and Murch
Sophisticated denizens of the legal world may regard ‘behaviour’ fact as a necessary evil, a contrivance which enables parties to be divorced more quickly than would otherwise be case; it does not, of course, mean what it says. Hardly surprising many respondents fail to appreciate this. As one husband petitioner recalled, ‘My wife disagreed that her behaviour was unreasonable. I don’t think she understood it was simply a piece of terminology; she thought it was an attack on her character.’
In Owens V Owens [2017] EWCA Civ 182, Sir James Munby, then president of the Family Law Division describes the rules of the game.
93……..The challenge for the divorce lawyer is therefore to draft an anodyne petition, carefully navigating the narrow waters between Scylla and Charybdis to minimise the risks that if the petition is too anodyne it may be rejected by the court whereas if it is not anodyne enough the respondent may refuse to cooperate. Since the former risk is probably very low in practice (and if it materialises the remedy is simply an amendment sufficiently ‘beefing up’ the petition as to satisfy the court: for an example see X v X (Y and Z intervening) [2002] 1 FLR 508, paras 17- 18), many petitions are anodyne in the extreme. The petition in present case is a good example; I cannot help thinking that, if the husband had not sought to defend, the petition would have gone through under the special procedure without any thought of challenge from the court.
Extracts from No Contest: Defended Divorce in England & Wales –
2018
Authors: Liz Trinder is Professor of Socio-legal Studies at the University of Exeter Law School. Mark Sefton is an independent researcher. – Research funded by the Nuffield Foundation
Solicitor interviewees recognised that it was asking a lot of people, especially with very recent or traumatic separations, not to want to tell their side of the story and to vent their anger and hurt. In those circumstances, some lawyers recognised that it was necessary to play a long game with their client:
[Respondent’s] not really even on the grief cycle, I don’t think. She’s just not on the acceptance bit yet…. I mean, she has mental health difficulties as well. So, from a professional point of view, part of me might have been thinking, "Deal with it; this is going to happen," but you have to be very sensitive because she’s not even into the grief bit yet; she’s just utterly rabbit in the headlights…. but ultimately, we got her to where we wanted to. But you need to be… People need to know that they had been heard. (Lawyer interview 10)
….only the most-determined (or stubborn) and, generally, the best-resourced parties, will be able to resist having their cases being filtered out before, or even during, a trial.