The case of Re Yorston & Ors  EWFC 80 has highlighted the need for proper legal advice and the dangers of using unregulated online services instead of solicitors.
While the law was changed to that of ‘no-fault’ divorce under the Divorce, Dissolution and Separation Act 2020, the relevant provisions do not come into effect until April 2022. Until then, there is still a fault-based divorce regime under the Matrimonial Causes Act 1973.
There is one ground for divorce: irretrievable breakdown of the marriage. This needs to be proven by one of the five ‘facts’:
Adultery of the respondent;
The respondent has behaved in such a way that the petitioner cannot be reasonably be expected to live with them (known colloquially as ‘unreasonable behaviour’);
Desertion for two years;
Separation for two years and both parties consent; or
Separation for five years.
Over the years, solicitors have come to draft petitions for divorce based on unreasonable behaviour in language and terms designed not to create more acrimony. In the vast majority of cases such petitions are not contested, and the court grants a decree nisi.
However, the Supreme Court in Owens v Owens  UKSC 41 made it clear that if the behaviour is not unreasonable enough, a divorce will not be granted. If an unreasonable behaviour petition is contested, the petitioner still needs to ‘prove’ the unreasonable behaviour. This will be of course fact-specific to every marriage, but if one cannot prove unreasonable behaviour then one will need to rely on one of the other four facts.
In Re Yorston & Ors, Mr Justice Moor listed twenty-eight divorce petitions to be heard together. This was because all twenty-eight petitions used the exact same wording. The wording was:
For about a year prior to the separation the respondent would become moody without justification and argumentative towards the petitioner. He/she would behave in this way on at least a couple of days every week, which would cause a lot of tension within the home thereby making the petitioner's life very uncomfortable. During the same period the respondent would also often ignore the petitioner and decline to communicate with him. He/she would also behave in this way on about two days every week, which would also cause a lot of tension within the home and make the petitioner's life very difficult. The respondent showed no interest in leading the life of a married woman/man for about a year before the separation. For example, he/she would go out socially on his/her own and basically exclude the petitioner from his/her life thereby making him/her feel very dejected.
The judge made it clear that, if he had seen this wording on its own, he would not have ‘bat an eyelid’ and that, if proven to be true, would be enough for a petition under the fact of unreasonable behaviour. The judge found that, as the particulars of the twenty-eight petitions were identical, they could not all be true. It would be simply incredible for all twenty-eight respondents to ignore the twenty-eight petitioners and decline to communicate with them on about two days per week.
The issue was that all twenty-eight petitioners had used the service of iDivorces. iDivorces does not appear to be regulated by the Solicitors Regulation Authority. A director of iDivorces, Mr Eastham, explained to the court that the above wording was the standard wording and that it was sent to clients of the service. The clients were then told to change the wording if it was wrong. Clearly, many of the clients of the service did not make any amendments.
Mr Justice Moor had considered a reference to the Director of Public Prosecutions on the basis that this could potentially amount to the crime of perverting the course of justice. The judge later decided that there was insufficient public benefit in such a reference but made it very clear that if this ever happened again, he ‘would have no hesitation in making a referral’.
The judge dismissed all twenty-eight petitions, meaning that the petitioners effectively had to start all over again.
This case highlights the dangers of not seeking advice from solicitors. While legal advice can be expensive, it provides specialist advice from trained professionals. Solicitors are regulated and there are schemes and enforcement agencies that assist and protect the public. Short cuts can often work but can be damaging in terms of financial cost and delay if they happen to go wrong.
Lack of specialist advice can mean that you are not advised of certain pitfalls. For example, if a person remarries after divorce before they have initiated financial proceedings, they cannot apply for a lump sum, property adjustment or spousal maintenance (known as the ‘remarriage trap’).
While some divorces can be easy and straightforward, the tricky part is that it is usually only confirmed in hindsight. Getting proper legal advice makes it more likely that one will reach the end of the journey without hitting rocks along the way.
Tom Gilchrist is a barrister in chambers with a busy practice in family law. Tom specialises in financial remedies, co-habitation, wills, and trusts. To instruct Tom, you can contact our clerks at email@example.com or on 0207 936 2613.