Why does this matter?
One of the questions that has arisen in relation to the Divorce, Dissolution and Separation Bill is when the clock should start running on the proposed twenty-week period leading to the conditional order. The Bill states that it should be at ‘application’. That would avoid the problems caused by the respondent avoiding service. The Finding Fault research showed how service avoidance was a significant problem in a minority of cases, including those featuring domestic abuse, and had the potential to delay or completely derail the process.
However, there have been suggestions that the start point should instead be where there is evidence of service to ensure that the respondent has sufficient time. An amendment to that effect has been handed in.
To help inform debate on the issue, I have conducted some further analysis on the Finding Fault dataset. In Part 1 of this post I looked at the likelihood of petitioners delaying the service of the petition. Part 2 looks at the likelihood of a ‘bombshell’ petition arriving on the doorstep of a respondent who is hitherto unaware of problems in the relationship.
SPOILER: On both issues the likelihood of the event happening is quite low and almost certainly lower than the documented risk of service avoidance. In qualitative terms, the potential impact of delayed notification is probably less than the impact of a significant delay in the final order or the risk of not being able to proceed caused by service avoidance. On balance, the evidence points towards starting the clock at application, but safeguards will be needed to protect the respondent. The government has already committed to requiring evidence of service before a conditional order may be made and to exploring other safeguards. The likelihood is that that will require changes to the Family Procedure Rules which will then be subject to further consultation.
How often is the divorce petition (application) a total surprise?
While we do have robust data on the extent and consequences of disrupted service, there has been no previous analysis of the frequency of unexpected (or ‘bombshell’) divorce petitions. The phenomenon is not logged as part of the court process, unlike failure to return the acknowledgement of service. However, we did conduct 81 qualitative interviews with petitioners and respondents as part of the Finding Fault research. In each case we asked the interviewee about when they were first aware of problems in the marriage, when they started thinking about/found out about the divorce, how the legal divorce progressed and their reactions to it. This gives us a rich insight into who initiated the separation and divorce and the extent to which either came as a surprise. We cannot use this non-representative sample to try to quantify the numbers of surprise petitions, but it is possible to draw broad conclusions about how common or uncommon surprise petitions might be in practice.
The complexity of uncoupling
It is widely acknowledged that divorce is best viewed as a process (or processes), rather than a single event. For our purposes, a crucial distinction is between the decision to separate (‘splitting up’) and the launch of the legal process (the ‘divorce’). International research has established that the majority of separations are not shock events following a ‘critical incident’. Instead they are typically initiated by one person, usually women, after a long period (typically years) of marital dissatisfaction (see, for example, Baxter 1984; Emery 1994; Rollie 2010).
A classic example of this type of incremental separation is our interviewee WK10 who described initiating her separation following years of dissatisfaction:
“On and off we had difficulties. I think five years – within five years of being married. But we were both quite reluctant to go ahead with divorce. Certainly, me because I was off work and I had young kids. I had very young children. So it was about how I was going to upset them and whether it was the right thing for them. So, I didn’t consider it before and it was only when- I think about 15, 16 years into my marriage when I thought, right, enough is enough and when my eldest actually said, “Mum, if you’re not happy, just leave”.
It is also well established that the parties will often emotionally leave the relationship at different speeds, with a ‘leaver’ and a ‘left’. However, another key insight from the international research is that the question of who initiates, or who leaves and who is left, is not quite so straightforward. Rollie (2010), for example, notes that those who withdraw emotionally from the marriage are not necessarily those who initiate the separation or legal divorce. It is possible to provoke or engineer the other spouse into acting by one’s own action or inaction. Similarly, both parties may be equally unhappy and wish to end the relationship, but only one will then initiate the separation and they may not be the one to initiate the legal divorce.
Incremental (non-surprise) separations
Our qualitative sample mirrored those findings. In broad terms, most of the interviewees described the ending of the relationship as following a long period of unhappiness or marital difficulties. Only a minority reported that the separation came as a surprise following a critical incident, typically but not always discovery or disclosure of an affair. Splitting up for most of our interviewees was not therefore a shock.
The incremental separations can be divided further into whether the initiation of the legal divorce was anticipated or not (see Typology below). There was a group of negotiated exits where the parties were in communication directly, or through lawyers, about the timing and content of the petition. These were not necessarily conflict-free cases, but both parties had a good understanding of what was happening and there were no surprises in relation to the timing of the petition.
There were also a number of acceptable exits cases where separation itself was not a shock, but where there was limited notice of the exact timing of the subsequent petition. This could follow extensive negotiations. Interviewee SP06 was not aware, for example, of exactly when the petition would be issued, but did want the divorce to proceed as quickly as possible. Or one spouse might use issue of the petition to take control of the process, including attempting to get back at the other. SP32 had been the initiator for the separation and was intending to file the petition, but her husband leapfrogged her petition by filing a snap petition of his own without notice (and without following protocols). Following an apparently mutual separation, SP20 deliberately filed his petition without warning his wife because “back then she was still very unreasonable”.
Whilst the behaviour of some petitioners is not necessarily conducive to positive relationships, in these ‘acceptable exit’ cases, the divorce itself was actively sought by the respondent. The content and timing of the petition might cause some additional upset, but the separation itself was not a surprise or the divorce unwelcome.
Typology of breakups
|Incremental separations||Surprise separations|
|Aware of incoming petition||Negotiated exits||Non-initiator control|
|Not aware of incoming petition||Acceptable exits||Bombshell petitions (no actual examples)|
Critical incident/shock separations
A minority of interviews reported that the separation was a surprise to one of the spouses. However, in no case in our sample was the shock separation effected by a bombshell divorce petition arriving out of the blue to an entirely unsuspecting respondent. Instead, in each case there was a gap between the sudden announcement that the marriage was over and the subsequent petition.
The shock separations were also distinctive in that in all our cases the ‘leaver’ who had initiated or triggered the separation then offered or allowed the person being left to take control of the subsequent legal divorce, possibly out of a sense of guilt. In one case the offer to be petitioner was refused (although the respondent was willing for the divorce to proceed), leading to a very carefully negotiated behaviour petition with no further surprises.
Otherwise, in each shock separation case it was the non-initiator (the left) who became the petitioner. Interviewee WK02 was shocked when her husband suddenly announced that the marriage was over. When he didn’t take action with the legal divorce, she took over: “I just said ‘Look, I want to get on with life, I don’t want this hanging over for however long, so if things could move forward quicker by me sorting it, then I will do it’. WK07 and WK15 both initiated adultery petitions within a few weeks or months after their partners surprised them with the revelation of an affair. And SP50 had endured years of domestic abuse before finally leaving: “I just walked out of the door with the clothes I had on my back and I just went”. She then allowed her husband to dictate the timing of the divorce, ultimately relying on the five year’s separation fact after he refused consent for a two year’s separation divorce.
The absence of bombshell petitions
Although ‘bombshell’ petitions are possible, there were none in our sample of 81 interviewees. The closest was an unusual case where both parties had emotionally disengaged from each other but ‘The Talk’ to end the relationship had not happened. The ending was achieved instead by the unannounced arrival of the petition. Some might see it as a ‘bombshell’ case, but a close reading of the account does suggest that the case is probably an example of what Rollie was referring to as one party at least partly engineering the separation by their non-activity or burying their head in the sand:
“It was definitely going to happen. We hadn’t discussed it, but we’d got to a point where life was just non-existent in the relationship, we were living two separate lives joined together by [child], which obviously isn’t ideal for [child] especially. So yes when it happened, yes she was on holiday [with extended family and child] … and I got the letters through the post, which … it’s kind of a moment that you will never forget when you read those kind of letters. But yes I got it, but after ten minutes I knew it was deep down the right thing to happen. So it wasn’t a surprise at all, but it was a surprise when it actually … when it happened”. (Res03)
Implications for law reform
So what are the implications for law reform? Two points stand out. First, as with previous research, what the analysis has shown is that who takes on the ‘petitioner’ and ‘respondent’ role in the legal divorce is not an automatic reflection of who has driven the separation or who might be in most need of protection or thinking time. That is not to say that respondents may not be vulnerable, just that it should not be assumed that they are the more unwilling and reluctant participants in the divorce process.
Second, whilst a ‘bombshell’ petition is possible, it is likely to be fairly rare, and certainly far less frequent than the known incidence of service evasion or delay, affecting up to a fifth of cases.
If the twenty-week clock does start at issue, as proposed, it will be necessary to tighten up the rules to prevent any game-playing by the minority of parties who attempt to get back at their spouse through the divorce process. That will mean addressing any attempts to delay service until the last possible moment as well as addressing the problem of service avoidance.
Baxter, L. A. (1984). Trajectories of relationship disengagement. Journal of Social and Personal Relationships, 1, 29–48.
Emery, R. E. (1994). Renegotiating family relationships. New York: Guilford Press.
Rollie, S. S. (2010). Divorce and dissolution of romantic relationships: Stage models and their limitations. In D.H. Demo & M.A. Fine (Eds.), Beyond the Average Divorce. Sage
See Part 1 the likelihood of petitioners delaying the service of the petition.