In England and Wales, there is only one ground on which a petition for divorce may be presented to the court by a party to the marriage, namely, that the marriage has broken down irretrievably.
In order to prove that the marriage has broken down irretrievably you have to prove that one of the following facts is true:
- adultery by your spouse
- unreasonable behaviour by your spouse
- desertion by your spouse for a period of at least two years
- two years’ separation, if you both agree to the divorce
- five years’ separation, if there is no agreement to the divorce
The Family Law Act 1996 introduced “no fault divorce” but, sadly, this part of the Act was repealed before being implemented and it seems that our new Government has its hands full with other matters to give priority to reform in this area. Therefore, unlike most other European countries, if proceedings for divorce are to be commenced before you and your spouse have lived apart for two years, the divorce Petition will have to be fault based. The desertion and 5 year separation facts are the most rarely used. One party to the marriage has to be the Petitioner and the other the Respondent.
The need to allege fault does not have to introduce (further) tension and hostility into what is a (usually) difficult and unhappy process.
For example, if you choose to rely on adultery as the reason for the breakdown of the marriage, there is no requirement for you to name the other person involved even if you know them. It is sufficient to say that adultery has occurred with “a man/woman whose identity the Petitioner does not intend to disclose”. This will almost certainly ensure that areas of friction are minimised and that the proceedings are not unnecessarily delayed. These in turn are also likely to keep costs down.
Alternatively, you may decide to rely on the unreasonable behaviour of your spouse as the reason your marriage has broken down. Where it is possible to, it is sufficient to rely upon a single very serious allegation of misconduct. However, usually it will be the course of conduct during the latter part of the marriage which has eventually resulted in its breakdown. The courts nowadays accept what are really quite mild instances of “unreasonable behaviour”. Two or three are usually sufficient to satisfy the court that a divorce should be granted. Some example instances (known as “particulars”) may be;
- In 2009 the Petitioner was made redundant from his employment and has not been able to find other employment elsewhere. The Respondent has shown him no sympathy or support.
- For approximately three years immediately preceding the presentation of this Petition, the Respondent has shown no tenderness or affection towards the Petitioner and has habitually resisted the Petitioner’s demonstrations of affection.
- From about December 2009 the Respondent has spent increasingly little time at home and habitually returns home from work between 9 and 10 pm.
- On 1st April 2010, the parties’ wedding anniversary, the Respondent told the Petitioner that she did not love him, that she had not loved him for some years and that she wanted a divorce.
It is important to remember that the reason for the divorce is very rarely a factor that is taken into account in the financial settlement or in any disputes about the children. It is therefore advisable, and usually possible, to agree with your spouse who will petition and which of the five facts you will rely on. Ideally all this will be agreed before the petition before it is issued by the court. It is not uncommon for people to decide which of them will petition on the toss of a coin and for the Respondent to draft the allegation of behaviour against themselves. Thinking carefully about these things at this early stage will help minimise friction and thus help keep your costs (financial and emotional) as low as possible throughout the remainder of the process.
You may also wish to consider how you resolve the other aspects of your divorce such as the financial claims and any issues about your children. There are a number of different process options such as mediation and collaborative law both of which are “no- court” processes. For more information about these and for people who can help with them visit the Resolution website www.resolution.org.uk
NB if you want to get divorced in England and Wales please check with a solicitor whether you satisfy the jurisdiction requirements before issuing a petition.
Contact info@flip.co.uk for more information.
Tags: adultery, divorce, divorce petition, grounds for divorce, unreasonable behaviour