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A divorce cannot be applied for until a couple has been married for at least one year.
Currently in England & Wales, it is not possible to obtain a divorce immediately without alleging that the other spouse is at fault ( due to adultery or unreasonable behaviour). The person who starts proceedings (the ‘petitioner’) must prove the one and only ground for divorce: that the marriage has irretrievably broken down.
This is proven by one of five facts:
• Unreasonable behaviour
• 2 years separation with consent
• 5 years separation
The petitioner must prove that
a) the respondent committed adultery and;
b) the petitioner finds it intolerable to live with the respondent.
Adultery is voluntary sexual intercourse between a man and a woman who are not married to each other, but one or both of whom is or are married. This fact cannot be relied upon by same sex couples. It is neither sensible nor good practice to name a co-respondent, as this will risk increase tension and conflict between the parties, it will also increase costs as a further party will be involved in the proceedings.
It is not possible to rely upon adultery as a reason for the irretrievable breakdown of the marriage if the couple have together for 6 months after discovering that the adultery has taken place.
In the absence of the respondent admitting to adultery, it is often difficult for the petitioner to establish that adultery has taken place. Adultery can be proved or inferred, in the absence of the respondent’s confession, by:
• circumstantial evidence ( such as cohabitation, sexually explicit messages, a report by a private investigator). However, even though the respondent may have had the opportunity and inclination to commit adultery, does not mean that the court is bound to infer that adultery has taken place. Unless the petitioner can establish adultery by obtaining a confession, it is practically more sensible to rely upon the respondent’s unreasonable behaviour, citing one example as “ the respondent is conducting an inappropriate relationship with an unnamed individual of the opposite sex.”
• Birth of a child ( if the wife has given birth to a child and it is established that the child is not the biological child of her husband)
• A finding in other legal proceedings
The petitioner also needs to show that he/she finds it intolerable to live with the respondent after discovering the adultery. In practice, the petitioner will complete a tick box stating that he/she finds it intolerable to live with the respondent in such circumstances.
This is the most common fact people relied upon. To establish this fact, the petitioner must prove that the respondent has behaved in such a way that he cannot reasonably be expected to live with the respondent. The petitioner will have to set out a number of allegations against the respondent to satisfy the court that the marriage has broken down irretrievably. Examples of behaviour which may be cited can be as follows:-
• Verbal abuse
• Physical violence
• Failure to provide emotional support
• Withdrawal of affection
• Inappropriate relationships with other people
• Failure to provide practical or financial support
• Too financially controlling
• Failure to assist around the house
• Failure to assist with child care
• Prioritising social like over time spent with the petitioner
The mere fact that the petitioner has become bored and thinks that they are incompatible is insufficient grounds for divorce.It is advisable that the contents of an unreasonable behaviour petition are agreed with the respondent before issuing proceedings to avoid causing unnecessary distress. Sometimes the contents of a petition can upset the respondent so much and can provoke such an emotional and angry reaction, sufficient to jeopardise negotiations on children and financial issues. Careful drafting of the petition is therefore required.
This fact is rarely used as desertion is difficult to prove and often it is easier to show the marriage has broken down due to another factor.
Two years separation with consent
Either person can issue divorce proceedings if you have been separated for at least two years and the other party agrees to the divorce. You can be treated as living apart even if you are living in the same household if you have been living completely separate lives. The court will require evidence of living separately when the petitioner applies for decree nisi. Evidence of living separately can mean:
• Not sleeping in the same bedroom
• Not cooking / cleaning/doing the laundry for each other
• Not shopping for each other
• Not eating meals together
• Not watching TV together
• Organising separate bank accounts and separate financial arrangements.
If the respondent is not willing to consent, the petitioner can rely upon the respondent’s unreasonable behaviour, rather than waiting for 5 years separation to elapse before commencing divorce proceedings on that basis.
Five years separation
You do not need the consent of the other person if you have been living separate and apart for at least five years. Where the only fact upon which the petitioner can rely is 5 years’ separation to support the irretrievable breakdown of the marriage, a respondent may defend divorce proceedings if he can show that:-
• A divorce would result in grave financial hardship or other hardship ( for example, a loss of a widow’s pension rights or religious ostracism) AND
• In all the circumstances it would be wrong to dissolve the marriage
A divorce petition is often one of the first documents drafted in proceedings. It can set the tone for dealing with future negotiations concerning the welfare of the children and how finances are distributed. Those negotiations may not be conducted as constructively as they ought to be if the petition has been drafted aggressively and over emotionally. At Myerson, the specialist lawyers in our Family Law Team are members of Resolution, and as such we promote a sensitive and constructive approach towards resolving all family law issues as proactively as possible.
If you require advice regarding divorce, financial settlement or any other family law matter, you can contact one of our specialist family law solicitors on 0161 941 4000 or email us at firstname.lastname@example.org.