Under the law of England and Wales, a divorce cannot be applied for until a couple has been married for one year. There is one ground for divorce, which is that the marriage has irretrievably broken down.
People often think that it is enough to say that there are “irreconcilable differences” within the marriage. However, unless a couple has been separated for a period in excess of two or five years, they sadly do need to allege blame on the part of their husband/wife to obtain a divorce.
Under current divorce law, in order to prove that the marriage has irretrievably broken down, the Petitioner needs to use one of five reasons.
Grounds for divorce - the five facts
Adultery is where the Respondent had sexual intercourse with someone of the opposite sex.
It does not apply to same-sex relations.
A Petitioner cannot issue a Divorce Petition on the basis of their own adultery.
The Petitioner needs to satisfy the Court that the Respondent has committed adultery and that he/she finds it intolerable to live with the Respondent.
Adultery Petitions can be used if the Respondent admits his or her adultery, otherwise it may be difficult to prove this and an unreasonable behaviour Petition can be issued instead.
It is possible to name the third party involved as the Co-Respondent but this is usually discouraged. Doing so can make the proceedings more acrimonious and drawn out.
2. Unreasonable behaviour
The Petitioner needs to show that the Respondent has behaved in such a way that they cannot reasonably be expected to live with them.
The Divorce Petition must include examples of the Respondent’s unreasonable behaviour during the marriage. These can include serious or relatively mild allegations of behaviour.
Usually, the allegations of behaviour have no direct bearing on how financial or children matters are resolved. Therefore, it is better to try to keep things as amicable as possible.
It is usually good practice to send a draft Divorce Petition to the Respondent for consideration before it is sent to the Court in order to try to avoid the Respondent defending the proceedings.
The Petitioner needs to show that the Respondent has deserted him/her for a continuous period of at least two years.
Desertion Petitions are rarely used because usually one of the other facts applies.
4. Two years’ separation with consent
Where the parties have been separated for at least two years, a divorce can be granted on this basis if the Respondent consents to the divorce.
5. Five years’ separation without consent
Where the parties have been separated for at least five years, a divorce can be granted on this basis without the Respondent’s consent.
Is it time for a change?
Unfortunately, the current law does not assist those couples who have simply grown apart through no fault of either party and want a divorce before they have been separated for two years.
In recent years, there has been much talk of reform towards no-fault divorce. The Divorce Dissolution and Separation Bill, advocating no fault divorce, was recently reintroduced before parliament and had its second reading in the House of Lords on 5th February 2020. The Bill will now go to committee stage on 3rd March 2020.
The family law system has increasingly encouraged mediation and negotiated agreements in relation to children and financial matters over recent years. Hopefully, in due course, our divorce law will catch up with this way of thinking. This would enable couples to divorce mutually without blaming each other, assisting them to separate in the most amicable and non-confrontational manner possible.