“I don’t love you anymore. I want a divorce” said Sarah Jessica Parker as Frances, the female lead in Sky Atlantic’s new American show, “Divorce”. Her husband responds by vomiting in a wine glass and Frances gently chastises him; “You shouldn’t have eaten so much cheese”. At that moment, Frances speaks to her husband like an old friend and tells him that she wants to divorce amicably.
We see Frances’ anger towards her husband, Robert, at other points in the first episode. She swears at the back of his head when he moans at her for hogging the bathroom and talks about an incident where she wanted to hit him in the face with a ceramic cat ornament for throwing her laptop out of the window. You can see the point that Sharon Horgan, the writer of “Divorce”, seems to be making here. The decision to divorce can follow hundreds, maybe thousands, of incidents like this. They might cause intense anger - or, in Frances’ case, the desire to cause physical harm - but you can still want your divorce to be amicable.
Halfway through the first episode, we discover that Frances has been sleeping with another man. As a viewer, you might ask yourself whether this is the real reason she wants a divorce? That is not what she says to her lover. She tells him that she can no longer bear to live with someone who repeats funny jokes instead of laughing at them. She says, exasperated, that he has no idea what it is like to share a life with someone you have literally nothing to say to except that the alarm is making that beeping sound again. Does this really constitute grounds for divorce?
Under the present law in England and Wales, there is only one ground for divorce - the irretrievable break down of the marriage. This has to be proven by reference to one of five facts:
- Unreasonable behaviour
- Two years’ separation (with the consent of the other party)
- Five years’ separation (no consent required)
Had divorce proceedings taken place here rather than the US, the reasons Frances gives for wanting to divorce would not seem to fall within any of these categories. Whilst her husband could petition for divorce based on her adultery, Frances could not. So where would this leave her? In reality, like many couples in this situation, if she wants to petition for divorce she has two options. She can wait until she and her husband have been separated for two years or she can petition based on his unreasonable behaviour. As the idea of waiting for two years to start the divorce process can feel like extending an already too-long period of limbo, many people petition on the basis of unreasonable behaviour.
Details of your partner’s unreasonable behaviour do not have to be offensive and vitriolic but there must be some substance to them. A petition based on unreasonable behaviour cannot be based on behaviour which actually seems, well, fine. A person who wants to divorce as civilly as possible must therefore start the process by describing their partner’s unreasonable behaviour, with reference to examples from their life together. Even when both people understand that this is a necessary evil, these particulars can be extremely difficult to write and read. For a couple who want to separate as amicably as possible, the need for one party to be blamed at the outset can introduce animosity when everyone is working hard to try and avoid just that.
The introduction of divorce grounds which wouldn’t involve blame or fault would help those couples. It would enable them to set the tone at the start of proceedings and put them on the right path to achieving an amicable divorce. Family lawyers should support clients who want to achieve this in any way they can. The first step is to press for the introduction of “no fault divorce” in England and Wales. To try and achieve that aim, I will be attending the Resolution Lobby Day in Westminster on 30 November 2016, which will focus on calls for no fault divorce, reforms to the law surrounding cohabitants and more support for vulnerable people.