Divorce Courts and Conflict 

Published on 25 November, 2022 | Holly Cook

Whatever happens in the remaining weeks of 2022, this year has already been a momentous one for divorce law.

In April, the provisions of the Divorce, Dissolution and Separation Act finally came into force, two years after it had taken its place on the Statute Book (https://www.legislation.gov.uk/ukpga/2020/11/contents/enacted).

It was particularly anticipated because it did away with the need for divorcing husbands or wives to attribute blame to their spouses for the breakdown of their marriages.

This very welcome and progressive step was wholly endorsed by Hall Brown Family Law.

However, as my colleague Claire Reid pointed out at the time, it only provided a partial solution for part of the issues which arise when a married couple decide to end their relationship (https://hallbrown.co.uk/no-fault-divorce-historic-but-only-a-halfway-mark/).

Figures published only a few weeks ago revealed that fault-based petitions – on the grounds of adultery or unreasonable behaviour – accounted for only just over half of all the divorces in England and Wales during 2021 (https://www.ons.gov.uk/peoplepopulationandcommunity/birthsdeathsandmarriages/divorce/bulletins/divorcesinenglandandwales/2021).

Regardless of whether a break-up was prompted by misconduct or not, rows occur frequently when it comes to discussions about how best to divide a couple’s marital assets.

In some instances, individuals use this part of the divorce process almost to gain a measure of revenge for the collapse of a marriage.

Whatever the root cause, though, this kind of dispute can be difficult to resolve, costly and have lasting consequences for the spouses involved and their families.

That fact was brought home by the publication of a Family Court ruling by Judge Edward Hess in recent days (https://www.bailii.org/ew/cases/EWFC/HCJ/2022/137.html).

It involved a couple who had been married for 31 years prior to becoming estranged in July 2019.

The ruling is perhaps most notable not for the length of the marriage or the couple’s wealth but the terms which Judge Hess used to characterise the behaviour of both.

His language underlined why I believe it is so important for spouses to do their best to end their marriage in a calm and rational manner.

The couple in the case in question had split up after the wife discovered a mobile ‘phone containing evidence which showed that her husband had been visiting prostitutes.

Discussions about how they should divide their cash and other assets had been marked, said Judge Hess, by the wife’s running up “a grossly disproportionate level of legal costs pursuing combative litigation…as a just punishment for the sins of the husband”.

Such behaviour, he added, meant that she should not “expect fully to escape from the financial consequences of this decision-making”.

Although Judge Hess’s remarks were eye-catching, this was not the first such observation of the year.

Mr Justice Mostyn actually called for a cap on divorce costs when handing down a ruling in the High Court in April (https://www.bailii.org/ew/cases/EWFC/HCJ/2022/30.html).

The matter featured a dispute between one of Russia’s richest women and her ex-husband over two London properties and the multi-million pound contents of a Coutts’ bank account.

So entrenched were they both in their respective positions that costs in the case were expected to reach £8 million.

Mr Justice Mostyn said that “it is difficult to know what to say or do when confronted with such extraordinary, self-harming conduct“.

Not every case which Hall Brown deals with involves individuals who exactly see eye-to-eye on how to divide the assets built up over the course of their marriage.

Nevertheless, we firmly believe that those negotiations should be stripped as much as possible of the tensions which can be associated with a divorce.

That is why – whenever possible and appropriate – we recommend Alternative Dispute Resolution (ADR) as a way of taking the heat out of the process.

Some couples opt for something called private Financial Dispute Resolution (FDR). As the name suggests, it is essentially a negotiation away from a courtroom.

It is staged at a time and location convenient to both spouses, and is overseen by a specialist family judge who will have been chosen by both too.

Although there is a price attached, it can often end up being significantly less than the routine court procedure and is much quicker.

Furthermore, the private FDR is a more constructive forum. Although the outcome isn’t binding, if successful it produces an agreement which can then be submitted to the court for approval.

It is the kind of approach which means that couples have a chance to continue their lives without the sort of rancour seen in some courtrooms and subsequently on the pages of the national newspapers.