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24 July 2019

On your best behaviour – family solicitors in the firing line

Family solicitors often talk about preparing ‘anodyne’ petitions for divorce when the task to be undertaken is to persuade the court that the marriage under consideration has irretrievably broken down and that the person seeking the divorce cannot reasonably be expected to live with their spouse.  It is hard to conceive of a situation in which a divorce petition could meet that test without causing some hurt or distress to the person on the receiving end.  Despite this, for many years the advice of the Law Society, now contained in the fourth edition of the Family Law Protocol, has been:

‘Where the divorce proceedings are issued on the basis of unreasonable behaviour, the petitioner should be encouraged only to include brief details in the statement of case, sufficient to satisfy the court…’

The intention was that the petition would be temperate and not ‘over the top’.

It is now almost a year since the Supreme Court informed Mrs Owens that her appeal was unsuccessful and that she must remain married to Mr Owens.

Several weeks ago the Government introduced its new Divorce, Dissolution and Separation Bill designed to ‘end the blame game of separating couples.  The Bill, assuming it is passed into law, will introduce a ‘no fault’ divorce and should mean the end of behaviour petitions but, until such time as the legislation is on the statute books, we are left with the present situation where the person seeking an early divorce may be compelled to issue one based on unreasonable behaviour.  It is expected that members of the national organisation, Resolution, will abide by its Code of Practice and attempt to deal with matters in a conciliatory, non-confrontational manner but Mr Justice Francis included a number of critical comments in his detailed judgment in the matter of ABX v SBX & DXa decision handed down last year.

Francis J was dealing with financial claims on divorce.  He stressed that this was not in any sense a conduct case, ie it was not being said that the behaviour complained of was sufficient to impact upon the financial outcome, but the judge nonetheless had this to say:

‘However, there are two aspects of the husband’s litigation conduct which need to be mentioned from the outset of this Judgment.  I have little doubt that, had things been handled differently by the husband (and those acting for him), the litigation could have taken a different, and less adversarial course.  I cannot and of course do not make any criticism of the husband for his decision to end the marriage.  It is not the business of judges in these cases to engage in such things.  However, the manner in which the husband chose to inform the wife at the end of the marriage, if true, is remarkable, although I appreciate that the parties’ positions differ. ‘

It seems that on 5 January 2016 the wife received a letter from the husband’s solicitors setting out that he considered that the marriage had irretrievably broken down and enclosing draft particulars of unreasonable behaviour without giving the wife any time at all to come to terms with the news that she had received.  The husband’s solicitors attached a draft divorce petition to their letter.  The judge commented that he had read the particulars and they were, to be fair to the husband, perfectly anodyne.  Nonetheless the judge also had this to say:

‘It will rarely be appropriate to send a draft petition at the same time as informing the surprised recipient of the shock news.  Certainly, in my judgment, it was likely to cause offence, and in the event did cause offence, to send a draft petition in the way that he did.  Of course, there can be cases where such action will be necessary, for example to secure a jurisdiction advantage, but no such situation applied here’.

The judge was also critical of the husband for the manner in which he had started the financial proceedings.  On 26 May 2016, his solicitors had written to the wife’s solicitors seeking confirmation that the wife would not make any application to the court prior to at least 1 June so that the parties could try and resolve finances through a voluntary process.  The wife agreed to this but on 1 June the husband’s solicitors informed the wife’s solicitors that the husband had unilaterally lodged his financial application at the court.  As the judge found, that application had been issued on 31 May, ie the day before the agreed deadline.  The judge was keen to receive an explanation as to how this had happened.  He was prepared to accept, at the end of the day, solicitors are only as good as the instructions they receive from their client but he regarded as plainly wrong that the husband’s solicitors should have acted in this way.

The judge pressed the husband’s counsel to indicate whether or not he would be seeking a transfer of assets from the wife to him or would be seeking periodical payments from the wife and when he was informed that this was not the case he ruled that the wife should be treated as the applicant.  He went on to say that, in his judgment the applicant should (absent special circumstances) be the person actually seeking an order in his or her favour, not the person who is in every respect the natural respondent but who happens to have stolen a march by issuing first.

The judge considered that the conduct of the husband’s solicitors in acting in this way was likely to have exacerbated the difficulties between the husband and wife.  This was contrary to the duties of solicitors in such cases.  The judge referred to the Resolution Code of Practice which states, in part, that Resolution members will ‘reduce or manage any conflict and confrontations; for example by not using inflammatory language’.  The judge could therefore not find any justification for the way that the husband’s solicitors behaved in acting as they did in relation to the commencement of the financial proceedings.

The judge went on in his judgment to indicate that the events he had described had had the consequence of significantly contributing to the fact that this couple had become locked in contested litigation from the outset and the possibility of trust was removed.  Finally he concluded this passage of his judgment with the words:

‘I very much hope that some lessons can be learnt about how not to commence divorce and financial remedy proceedings, albeit that one might have thought these lessons had been learnt many years ago’.

It is perhaps not surprising that the judge in this case expressed his exasperation and concern with the manner in which the case had developed.  Between them the husband and wife had incurred costs of almost £1.1 million.  That was in a situation where the judge found that the total net assets were somewhere between £1.5 million and £5.4 million.  He did not consider the case to be particularly complicated and thought that the costs incurred were wholly disproportionate to the size of the assets.  The impact of this expenditure was to leave far less available to meet the parties’ financial needs.  The judge was not just critical of the husband.  The wife also came in for criticism in the way in which she had run certain parts of her case.  Clearly the judge thought there were important lessons to be learnt by all involved.

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