Many couples grow apart over the years but a recent case to the Court of Appeal highlights the legal position where a woman did not have sufficient grounds in law to divorce her husband. The law in England and Wales does not recognise ‘no-fault divorce’, therefore couples wishing to divorce must satisfy one of five specific facts for divorce (e.g. adultery, unreasonable behaviour, desertion, separation for two or five years). Where divorce is a desirable outcome but one of these facts cannot be met immediately, a mediator may help to pave the way.

In real life, many couples grow apart and want different things. It makes sense to them to split up and move on with their lives separately – they accept the reality of the situation and neither party is really to blame. However, this is not an acceptable basis for divorce.

Recently, a case was heard by the Court of Appeal because a lower Family Court refused the wife’s petition for a divorce on the fact of unreasonable behaviour despite 27 allegations against her husband. In the Court of Appeal, Sir James Munby, the most senior Family judge in England and Wales said: “It is not a ground for divorce if you find yourself in a wretchedly unhappy marriage – people may say it should be.”

Many family solicitors and Resolution, the national family law group, are campaigning for ‘No-Fault Divorce’ which avoids the need for parties to make negative or derogative comments about each other.

Where does mediation come in? Until the law changes, the mediation process can be used to draft an unreasonable behaviour petition which is acceptable to both parties, doesn’t cause offence to either party and allows the couple to achieve their aim in obtaining a divorce.