Reasons for divorce. Which is right for us?
8 Dec 2021 | Sophie Brand
In England and Wales, there is only one legal ground for divorce, which is that the marriage has broken down irretrievably. When you married, you committed to staying together ‘for better or for worse’ and so English divorce law recognises that there are ups and downs in all relationships and there has to be a valid reason for ending a marriage contract. This is also part of why the law says you must be married for at least one year before you can file for divorce.
Grounds for Divorce
Although commonly thought of as grounds for divorce, the person who commences proceedings, the petitioner, must prove that the marriage has irretrievably broken down by establishing one of the following five facts:
- Unreasonable behaviour;
- Adultery;
- Desertion
- Two years of separation with consent; or
- Five years of separation
The first three facts are known as ‘fault’ based reasons. They are effectively pointing the finger at your spouse and blaming them for the breakdown of the marriage. The advantage of using one of these grounds is twofold. Firstly, you are able to petition for divorce immediately (provided you have been married at least one year) and secondly, you have the right to pursue an order for costs seeking that your former spouse pays for the divorce proceedings.
The other two facts are based on time and consent. The advantage of these two facts is that they are not contentious and help to maintain an amicable relationship. This can be particularly important if there are children to consider.
It is worth noting that the fact you rely on in your divorce petition has no bearing on financial matters or children matters whatsoever.
Unreasonable behaviour
You will need to show that your former spouse has behaved in such a way that you can no longer be expected to live with them. In order to establish this, it is necessary for you to include within your divorce petition five or six examples of the behaviour that you find to be intolerable or unreasonable.
The types of unreasonable behaviour accepted by a Court can be from the extreme cases of domestic violence to spouses who drink or gamble, spouses that have simply disengaged in family life, or who otherwise mistreat their spouse. It is a subjective test i.e. what behaviour has occurred to make the petitioner decide the marriage has broken down irretrievably. The Court does not therefore need to objectively assess whether the behaviour is sufficient to lead to the breakdown of a marriage.
You should be mindful that putting these criticisms in writing can often cause unneeded additional acrimony. It is therefore helpful to make the particulars of behaviour mild, and provide your spouse with a copy of the draft petition before it is filed with the Court, so it does not come as a shock.
Please note that if you continue to reside with your spouse as a couple for a period of six months after the last incident of unreasonable behaviour, then you will be barred from using the route of unreasonable behaviour.
Adultery
If you are to rely on this fact, you will need to show that your former spouse committed adultery during the course of your marriage. While some spouses will openly admit they are committing adultery, this can be a more difficult fact to prove than many people imagine. It is not sufficient to show that your spouse has an intimate relationship with someone else (e.g. via text messages); you must actually prove your spouse has had sexual intercourse with another person of the opposite sex. You can name the other person involved in the divorce petition as a co-respondent, but we would advise against doing so as it more often than not leads to increased levels of acrimony and delays.
As the law is specific on the person being of the opposite sex, this is not a ground that is usually available in same sex marriages.
If you suspect your former spouse may be having an affair and can show they have a close intimate relationship with another person, you may wish to claim they have behaved unreasonably and use this fact rather than adultery, due to their inappropriate relations with other people.
Please note that if you continue to reside with your spouse as a couple for a period of six months after discovering their adultery, then you will be barred from adultery as proof that your marriage has broken down irretrievably.
Desertion
To prove this, you must show that your spouse has left you without good cause and without your consent for a period of at least two years. The Court must be satisfied that your spouse has ‘abandoned’ the marriage. This means they have had a change in mindset in leaving you. For example, it is not sufficient if they move overseas for work for a period of time. They may claim that they always intended to return to the marriage.
It may be clear to you from text messages, emails or other communication with your spouse that they intend for the marriage to be over. Or, you may have attempted to contact them but been ignored. Such communication may be used as evidence in showing your spouse has abandoned the marriage.
Two years of separation with consent
You will need to show that you have lived separately for a period of at least two years before the submission of your divorce petition, and your former spouse must consent to the divorce. If your former spouse does not consent, then you cannot proceed on this basis.
In some limited circumstances, it is possible to show that you have lived separate lives under the one roof for a period of time. In order to satisfy the Court of this you must show that you lead entirely separate lives, for example, you cannot have carried out joint tasks such as washing clothing for each other or eating meals together.
Five years of separation
You will need to have lived separate lives for a period of at least five years before the submission of your divorce petition. There is no need for your former spouse to consent to this fact.
No-fault divorce
Soon, divorcing couples will no longer have to blame one another for the breakdown of their marriage. Under new legislation expected to become law on 6 April 2022, amongst other changes, couples will no longer need to rely on one of the 5 facts when applying for a divorce. This means they can end their marriage through a ‘no-fault divorce‘ without having to cite blame (or agreeing to be separated for a minimum period of 2 years). A long overdue and welcome change!
How we can help
We have a team of expert divorce lawyers in London who can talk you through your options and, once we have discussed your particular circumstances, we can help you to decide on the best approach to obtaining a divorce.
To speak to a divorce lawyer, call Sophie Brand, or complete an online enquiry form.
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