Myths about divorce – when, and how, you can petition for divorce

There is an abundance of information and advice available on the internet for those facing divorce proceedings but, unfortunately, a lot of this is inaccurate and misleading. Online divorce forums are full of answers to questions about divorce which sound authoritative but are so often entirely wrong. Time and time again clients come in to see me with misconceptions of the basic principles of the divorce process. It is always important to seek advice from a specialist family lawyer when you separate, even if you and your partner are not yet considering divorce proceedings, to ensure that you understand your rights, obligations and the options open to you. In this blog I will use the language of marriage and divorce, but the same principles apply to the breakdown and dissolution of a civil partnership.

The most frequent misconception I come across is the idea that if a decision to separate is mutual, with no adultery or abuse, then you must wait 2 years before you can start divorce proceedings. Others believe that if you don’t wait until you have been separated for 2 years then the proceedings will be more difficult or you will need to attend court.

It is true that there is no such thing as a ‘no fault divorce’ available in England and Wales until you have been separated for 2 years or more. Often it is important to finalise the matrimonial finances swiftly by way of a consent order which can only be made within divorce proceedings, or for emotional reasons you may feel that you need to draw a line under the marriage and move on. What can you do if your separation was a mutual decision?

Firstly, it is important to understand that there is only one ground of divorce; that your marriage has irretrievably broken down. In most cases, it is safe to say the marriage has irretrievably broken down by the time one party takes the active step of filing a divorce petition. It is almost never a decision taken lightly. The spouse who files the petition is known as the petitioner and the other party is known as the respondent.

It is then necessary to support the assertion that the marriage has irretrievably broken down with one of 5 facts which are set out in statute: –

1. In the case of a marriage, but not a civil partnership, that the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent. Many people do not realise that if you commence a relationship after you have separated but before you are divorced you are still committing adultery.

2. That the respondent has deserted the petitioner for a continuous period of at least 2 years immediately preceding the presentation of the petition. The fact that your spouse left you out of the blue is not sufficient to show desertion. You would generally only be successful if your spouse has left you unexpectedly without good reason and there is no contact between you. If your spouse left you unexpectedly but stays in touch to discuss the children or financial matters this would not be considered desertion.

3. That the parties to the marriage have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition and the respondent consents to a decree being granted. Some couples have no option but to continue to cohabit after separation due to financial constraints. You may however still be considered to be living apart, albeit under the same roof, if you live separate lives and don’t share any of the usual activities of family life.

4. That the parties to the marriage have lived apart for a continuous period of at least 5 years immediately preceding the presentation of the petition. You will usually be granted a divorce if you have been separated for 5 years, even if your spouse does not agree. However this does not mean that you can obtain a divorce ‘automatically’ without your spouse knowing about it. The usual divorce procedure is followed and the court will expect you to do everything you can to serve (deliver) the petition on them, only allowing divorce proceedings to continue without service in very limited circumstances.

5. That the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent. This fact has a wide scope and is subjective; the question is whether the person who is petitioning finds the behaviour so unreasonable that they can no longer be expected to live with the respondent. Whilst using this fact seems an aggressive route to take, it is often the only option for couples who want to divorce before they have been separated for 2 years and I find myself drafting these petitions for couples who want to separate amicably on a regular basis. Whilst it is necessary for one party to be ‘blamed’ for the divorce, the allegations can be kept mild and there is absolutely no need for that person to be dragged through the mud. Lawyers who are members of Resolution, the organisation of family lawyers who are committed to a constructive resolution of disputes, will always keep the allegations to a minimum whilst including sufficient detail to satisfy a Judge that the marriage has irretrievably broken down.
   Often when a marriage breaks down either party would be in a position to petition the other using allegations such as a failure to communicate. If you are separating amicably, I recommend talking to your spouse and agree who will petition and what allegations will be cited as unreasonable behaviour in advance. The petition really can be seen as a means to an end and the contents of the petition will have no bearing on child or financial arrangements.

In conclusion, it is not the case that you need to be separated for 2 years before you can start divorce proceedings, although you will need to agree to apportion blame on one party to the marriage in the petition.

My own feeling is that this is a somewhat unsatisfactory situation for many of my clients who want to deal with their divorce amicably and with dignity. Resolution is campaigning for change as it doesn’t believe that the current law properly provides for those experiencing the breakdown of the marriage in the modern age. I share this view. As a family lawyer of course I come across situations where one of the spouses has committed adultery or a significant wrong against the other, but in my experience most marriages end by a mutual decision of both parties. Often they agree that they have simply ‘fallen out of love’. Shouldn’t the law encourage and support a couple who want to deal with their marriage breakdown in an adult and amicable manner?

If you are considering or going through divorce proceedings, you may find it helpful to take a look at our divorce factsheet which explains the process.

This blog was originally written by Lauren Guy. For a consultation with a member of our specialist family law team please contact us.