Grounds for Divorce

GROUNDS FOR DIVORCE

Richard Sauvain – April 2007

On the breakdown of a marriage, at some stage the husband and the wife will consider whether to divorce. There is no legal obligation to get a divorce and the process does not commence automatically after a specified period of time. This is a brief guide to the divorce process and the grounds for obtaining a divorce.

Validity of the marriage

Strange as it may sound it is important to establish that you have been validly married. This should present no problems if the parties were free to marry and went through a recognised form of marriage. A marriage in the United Kingdom should be recorded in a standard marriage certificate. If you were married abroad then it is important to check that the certificate records a marriage which will be recognised in this country. If, in fact, you were not validly married then you will be looking at nullity, or other proceedings, in order to safeguard your legal position.

The marriage certificate

To start a divorce you will need the marriage certificate which will be kept by the Court permanently. You should obtain a duplicate if you want to keep your own version of the certificate. Bear in mind that if you were married abroad then obtaining a duplicate can be very difficult - try not to lose the original. A marriage certificate from a non English speaking country may not be in the English language. You will therefore need to obtain a certified translation before you can start your divorce.

Length of marriage

You have to have been married for at least one year before you can start a divorce. In certain very specific circumstances you may be able to get a short marriage annulled. However, the fact that the marriage is very short in itself is not enough to obtain an annulment.

Can I get divorced on irretrievable breakdown?

The answer is both yes and no. There is only one ground to obtain a divorce and that is that the marriage has irretrievably broken down. However, this is not enough on its own. To show that the marriage has irretrievably broken down the Court will want you to demonstrate that one of the following five facts exist:

• (a) Adultery by the other spouse.
• (b) Unreasonable behaviour by the other spouse.
• (c) Two years separation and the other spouse consents.
• (d) Desertion by the other spouse for at least two years.
• (e) Five years separation.

Adultery

This is obviously a very specific act by the other party with a member of the opposite sex. You cannot get a divorce if the date of the adultery took place more than 6 months ago, that you knew about it and during that time you have carried on living together. If the other spouse is prepared to admit to adultery then you do not need to name the third party (known as the Co-Respondent), indeed it is more straightforward, arguably less provocative and usually cheaper not to name the third party.

Unreasonable behaviour

Whilst adultery is a very specific act, unreasonable behaviour can cover a wide range of acts and conduct by the other spouse. The behaviour does not have to be extreme, although different Judges have their own ideas about what constitutes unreasonable behaviour. Generally a short list of specific incidents, coupled with general conduct, will be sufficient in most Courts. It is usually a good idea to agree the particulars of unreasonable behaviour with the other spouse in advance, if possible. It is not enough to say you were mutually incompatible or simply do not love each other anymore.

Two years separation and consent

To use this fact you must have been separated from your spouse for at least two years and your spouse must consent to a divorce. Separation can be easily proved if you have not lived together in the same house for two years. It is possible, but very difficult, to show you have lived on a separated basis within the same house. The Court will require a great deal of persuasion before accepting a divorce on this basis. If there have been periods of reconciliation then this will complicate the procedure and you will be barred from using this fact if reconciliation has been for 6 months or more. The other spouse must consent and this usually means he or she must complete a form, during the divorce, confirming their consent.

Desertion

This fact is rarely used. Your spouse will have left you for at least two years in circumstances where they had no justification for doing so, you did not want them to leave and have wanted them to come back. All of these things are quite difficult to prove if the other party will not cooperate.

Five years separation

Five years separation is defined in the same way as the fact of two years separation, but this time no consent is required. Providing there is no dispute that there has been separation for five years then there is only one very limited defence to this fact. Your spouse would have to argue that a divorce would cause them to suffer grave financial hardship. This can usually be pre-empted by dealing with financial matters at the same time.

Can I get a quick divorce?

Different Courts will vary but usually an uncontested divorce, where the other spouse cooperates and is pursued by you without delay, will take about six months. There is no such thing as a quick or 10 minute divorce - this is pure media invention. All divorces have to follow a set procedure which will require you to obtain two Court orders, Decree Nisi and then Decree Absolute. Sometimes it might be in your interests to delay the divorce, eg, if you have not resolved financial matters yet.

Does it matter who does the divorcing?

In short, the answer is usually no. The judge will not be interested in who is to blame for the breakdown of the marriage when deciding how to divide the family finances. Only very exceptional conduct or behaviour by one party might be taken into account. It is worth bearing this in mind when you consider your response if your spouse has decided to divorce you.

How much does it cost and who pays?

Obviously if you use a solicitor then you will be responsible for their fees. It is not essential to have a solicitor, but even if you do not have one you will still need to pay a £300 Divorce Petition fee and a £40 Decree Absolute fee. You should be warned the government regularly increases these fees. Only 10 years ago the Divorce Petition fee was just £80 and there was no Decree Absolute fee. You can ask the Court to order that the other party pays some or all of your legal costs. If the other party does not agree then the Court will have to decide this. Different Judges have different views on this and will consider each individual case on its merits. However, as a general rule you are very unlikely to get a costs order if the basis for the divorce is two or five years separation.

This is a brief summary of the current law and procedure in relation to divorces in England and Wales. If you have any doubts about where you stand or what you should do then it is important that you take proper legal advice from a good divorce lawyer. Marital breakdown usually means you will have to sort out the family finances and make arrangements for your children. These issues can become very complicated matters in their own right and therefore the importance of obtaining the right advice cannot be overstated.