Are irreconcilable differences grounds for divorce?

9 Dec 2021 | Lisa Pepper

If you have come across this article it may have been as a result of an online search to see if you and your spouse have ‘irreconcilable differences’.  You may be curious about what this phrase means exactly, and why it is used so often in relation to divorce.  

There is no legal definition of an irreconcilable difference in this jurisdiction i.e. England and Wales.  The phrase simply means that you and your former spouse are not able to resolve the disagreements between you.  This could cover a wide range of marital problems from disagreements over finances to how the children should be raised.  If such issues cannot be resolved, then they can cause difficulty in moving forward with the relationship and build resentment.  

You or your former spouse may have made the decision that the marriage has come to an end because of these differences.  If so, you will want to know if these irreconcilable differences are grounds for divorce. 

Are irreconcilable differences grounds for divorce? 

In many parts of the world, irreconcilable differences are regularly cited in divorce papers as the reason for the marriage breaking down.  Perhaps this phrase is most famously used by celebrities in California to avoid the need to get into the nitty gritty details of their relationship breakdown.  It is a fairly neutral term that does not cast aspersions on either spouse.  It is easy to see why it is an attractive option for many.

Unfortunately, in England it is not possible to proceed with a divorce solely on the basis of irreconcilable differences.  But it is possible that the behaviour of your spouse (which led to the irreconcilable differences) could still constitute a reason for divorce. 

What reasons can be used for divorce?

In England, to obtain a divorce you must show that your marriage has broken down irretrievably.  The law says that you can show this in one of five ways: 

  1. Adultery – this is where your spouse has voluntarily had sexual intercourse with someone of the opposite sex.  
  2. Unreasonable behaviour – this is where your spouse has behaved in a manner that you cannot reasonably be expected to have to live with them, and the reasons for this can vary widely. 
  3. Desertion – this is where your spouse has deserted you for at least two years.   This is rarely used as it can be hard to prove your spouse’s intention. 
  4. Two years separation with your spouse consenting – this is when you have lived separate lives for a period of at least two years, normally under separate roofs, and you both consent to a divorce. 
  5. Five years separation – this is when you have lived separate lives for a period of at least five years.  If you proceed on this basis, you do not need your spouse’s consent. 

You can read our guide to divorce grounds for more information on each of these five facts. 

Can irreconcilable differences be used to show unreasonable behaviour?

It’s not quite so simple, but one of our expert lawyers will discuss your particular situation and advise if your spouse’s actions are likely to meet the threshold for unreasonable behaviour.  Irreconcilable differences is about both of you deciding that the relationship isn’t working whereas a behaviour petition has to set out the ‘fault’ of your spouse’s behaviour only.  

For the court to accept unreasonable behaviour it must be convinced that your former spouse has behaved in such a way that it is not reasonable to expect you to live with them anymore.  

For example, if you have arguments over money, details will need to be given about why and in what manner your spouse behaves.  Not every disagreement is going to amount to unreasonable behaviour. 

It is also important to bear in mind that when choosing unreasonable behaviour as the reason for divorce, you must detail in your divorce petition the particulars of why you claim that your spouse’s behaviour is unreasonable.  You need to give different examples of the behaviour, not on the same theme.  It is not sufficient to simply say that they have behaved unreasonably.  This can add to, or even cause, additional acrimony between you and your former spouse. 

How can I best proceed?

If you have come across this article in the hope that claiming irreconcilable differences between you and your spouse would provide an amicable route out of marriage, then you may have been disappointed to read that this is not in fact a ground for divorce.  However, there are many steps that we can take to help you achieve an amicable divorce.  

An amicable divorce means both of you are in agreement with what happens to the children, property and finances.  It also means you agree on the grounds for how you will divorce.  Even if your separation has been difficult, an amicable divorce is still attainable and has the advantages of being quicker and less expensive.  It is important to focus on the end goal you want to achieve and not to become too caught up in mini-battles which can have little bearing on your final divorce, but can lead to ill feeling, entrenchment and ultimately may prolong the process for you both – and rack up costs. 

We can open a dialog with your former spouse and their lawyer and seek to reach an early agreement over the issues that are important to you both, including how the divorce is to proceed.  Depending on your individual circumstances, we may recommend a form of mediation to help.  You may have already had an open and honest discussion with your former spouse and reached agreement over many matters directly.  

Whichever route, once an agreement is achieved, we can assist with making a financial settlement legally binding and  made into a consent order (‘Financial Remedy Order’) by the court.  

With regards to the arrangements for your children, you may need a parenting agreement or if it is impossible to settle matters concerning the children, an order from the Court (a Child Arrangements Order).  We try to avoid Court proceedings for you, but unlike financial matters, the Court doesn’t ratify an agreement about the children.   

It is important to note that the law in England is due to change to include a non-fault-based ground for divorce that will not involve a period of separation.  Even when this becomes available, the early involvement of a lawyer can save you costs and time, and with teh right choice of lawyer, keep things amicable and constructive.

How we can help

We have a team of expert divorce lawyers in London with experience in representing and advising clients on all aspects of divorce and financial separation.  We deal with both UK and overseas pensions.  

If you are overseas or outside London, we have high speed video conferencing facilities and a full online service to ensure you are kept up to date and fully appraised of your case and legal options. 

Osbornes Law are leading divorce lawyers in London. The firm is ranked in the legal directories and has been named as one of the best law firms in England since 2019. We have two offices based in Hampstead and Camden. The firm is also shortlisted as London Family Law Firm of the Year 2022 at the Family Law Awards.

Lisa Pepper is a partner in the family department specialising in Divorce, finance and children matters. She is also an accredited mediator. Lisa specialises in helping parties with considerable international assets. She is ranked as a leading lawyer in Chambers UK, Chambers HNW, The Legal 500, Spears HNW directory and Tatler Advisory.

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