A custodial sentence for divorce is slow progress

As family lawyers, we see many cases where an abusive or controlling spouse has succeeded in restricting their partner’s access to children.

We all know that the main reason – and the quickest way to get divorced – is the petitioner’s allegation of ‘unreasonable behaviour’ by the respondent, and the standard to be met is that it ‘would be unreasonable to expect the petitioner to continue to live with the respondent’.

So, I will not be the only one following the ten-week consultation announced by the home secretary, Theresa May, which proposes to create a new offence which could make the worst cases of non-violent ‘controlling behaviour’ a custodial offence.

Last year, the government expanded its definition of domestic abuse to include psychological abuse as well as violence within the home. This states that domestic abuse ‘is a pattern of incidents of controlling coercive, threatening behaviour, violence or abuse, between those aged 16 or over who are, or have been, intimate partners or family members, regardless of gender or sexuality.’

The behaviour captured in this definition includes ‘a pattern of acts of assault threats, humiliation and intimidation, or other abuse, that is used to harm, punish or frighten their victim.’ While there are currently laws which criminalise acts of violence and intimidation, none of them specifically refer to personal relationships. May said that new laws against domestic abuse would be part of an “overarching strategy” to eliminate the problem.

According to the Office for National Statistics, 7 per cent of women and 4 per cent of men experience domestic abuse. Those percentages represent about 1.2m women and 700,000 men.

However, I remain sceptical. The proposal is certainly laudable but, in reality, the burden of proof will make it extremely difficult to enforce. Additionally, the law could be open to abuse by the very people it seeks to punish.

An allegation of unreasonable behaviour is the easiest path to a ‘quick’ divorce. The respondent is almost always advised not to defend the petition, pressure is applied, even by the courts, not to defend, on the basis it is a waste of time and money, and it gets nodded through. Respondents are praised for their pragmatic commercial approach, even though they may be furious with the allegations and long to test them out in court.

The allegations contained in the petition and ‘nodded through’ may yet amount to sufficient abuse to warrant a criminal charge and meet the criminal standard, beyond all reasonable doubt. What then of the impact on a divorce and/or family breakdown?

I can foresee a huge sea change procedurally if the offence becomes law. How could a respondent to a
divorce allow the allegationsto get nodded through, for the sake of family harmony, but at the same time leave themselves open to a prosecution? How would allegations be henceforth dealt with in a divorce?

The obvious answer is, if this is going to become a criminal offence, is to introduce no-fault divorce alongside it. The alternative will be to clog up the courts even more than they already are today. SJ

Marilyn Stowe is the senior partner at Stowe Family Law www.stowefamilylaw.co.uk