The position in England and Wales is that there is only one ground for divorce and that is that there has been an irretrievable breakdown of the marriage under Section 1 of the Matrimonial Causes Act 1973. To prove the breakdown, the petitioner at present (until the Divorce, Dissolution and Separation Bill – the so-called no-fault divorce – starts to apply in the Autumn of 2021) must establish one of five facts, which are expanded upon below:
- Two years’ separation with the consent of the respondent
- Five years’ separation (no consent required)
To establish adultery, it must be proven that adultery has been committed (voluntary penetrative sex between a man and a woman who are not married) and that the person petitioning finds it intolerable to live with their spouse. The definition of adultery is somewhat out of date because it does not provide for same-sex couples who have no alternative but to rely on the fact of unreasonable behaviour if their spouse were to cheat. For a petition that relies on adultery to proceed the other party will need to confirm to the court that the adultery took place which can simply be stated by writing ‘Yes’ to the question raised in this regard on their acknowledgement of service.
The statement that the wronged spouse would find it intolerable to remain married does not require any supporting evidence, merely a ‘tick in the box’ will suffice.
Whilst you may think that you could rely on behaviour because, for example, your partner disapproved of your knitting, you actually have to prove that the respondent has behaved in such a way that they cannot reasonably be expected to live with the respondent.
You will need to :
- Consider the allegations and determine what the respondent did and did not do.
- Assess the effect of that behaviour on you.
- Evaluate whether it is unreasonable to continue to live with your spouse.
Sadly, whilst poorly knitted homemade jumpers alone will not suffice, the particulars detailed do not necessarily have to go for the other spouse’s jugular and where possible milder particulars are always preferable for helping to keep matters calm throughout the divorce process.
Essentially, the court when assessing a petition on the grounds of behaviour has to decide that any right-minded person would come to the same conclusion as the petitioning spouse, which is that they cannot reasonably be expected to live with their partner.
Two Years’ Separation with Consent
As the name suggests, to rely on the fact of two years separation with consent it must be proven by the petitioner that both parties have lived apart for two years and the other party must consent to proceed on this basis.
Living apart does not necessarily mean that you need to have been living in separate properties, but can also mean where you have lived in the same household but you have lead separate lives, for example, separate bedrooms and no shared living arrangements such as cooking or washing. Only the petitioning party need to think the marriage has ended and that they intend to not live with the other person again.
When establishing whether desertion has taken place, the petitioner must prove that they have been deserted by the respondent for a continuous period of at least two years before the petition is filed at court.
It must be demonstrated that there has been:
- A separation;
- Intention to desert;
- No agreement or consent to the separation;
- No just cause for the respondent to leave;
- Continuous desertion;
- Desertion that immediately precedes the date the petition is filed at court.
Five Years’ Separation without Consent
This fact is similar to the above in that the parties must have lived apart for a continuous period of five years or more, however, the key difference being that there is no requirement for the respondent to consent to a petition proceeding on this basis.
There are two defences to this fact, one is that the respondent could deny that they have both lived separately for five years, or they could claim ‘grave hardship’. This is where a divorce would result in grave financial or other hardship and it would be wrong to dissolve the marriage. The court will consider all circumstances of the case.
Family Law Partners are here to help you through every step of your divorce and achieve a positive outcome. If you would like more information on the divorce process, then please do not hesitate to contact a member of the team.
Erin Jones is a Paralegal at Family Law Partners’ Horsham office, supporting our specialist family solicitors Kate Elliott and Rachel Nicholl. The Horsham team advises clients in Horsham, Billingshurst, Godalming, Cranleigh, Guildford, Crawley and surrounding areas.