Video guide - when to start your divorce
The grounds for divorce are not the same in all parts of the United Kingdom.
This is because England and Wales have one legal system; Scotland and Northern Ireland have their own.
Below is a general guide to the grounds for divorce in England and Wales as I would provide in a typical face to face initial consultation.
It is not intended to be a substitute for anyone taking specific advice for themselves. If you need help with your divorce, get in touch.
Grounds for divorce in England and Wales
There is only one ground for divorce in England and Wales.
The marriage must have broken down "irretrievably".
The law is specific about the meaning of irretrievably.
For example, if you have separated there is a minimum period of two years in England and Wales before you can say that this is evidence that the marriage has broken down irretrievably and that you are therefore entitled to a divorce.
Proving the grounds for divorce
There are only 5 possible reasons recognised by the law, why a marriage can be said to have broken down irretrievably in England or Wales.
- Unreasonable Behaviour
- Desertion for at least two years
- Separation for two years if you both consent to the divorce
- Separation for at least five years.
We refer to the last two reasons as "no fault" divorce.
No fault divorce in England and Wales
The only way to have a no fault divorce in England and Wales is after you have been separated for a minimum period of time. That minimum period depends upon whether you both consent to the divorce or not.
If you both agree to the divorce you must be separated for two years before sending the petition to the court.
If one of you does not want a divorce, the other spouse must wait five years before he/she can start it.
Many divorce and family law solicitors (including me) would like the law of divorce altered so that the time limits for no fault divorce are reduced.
Unfortunately that does not look likely to happen in the near future but there are still good reasons to wait as long as you can sort out your finances in the meantime.
A no fault divorce is less stressful. No blame is attributed to either of you for the breakdown in the marriage.
The court states the reason for the divorce in the decree nisi. If one person feels unfairly blamed this can lead to bitterness. If you have children this is best avoided if possible.
If you are intending to wait two years to start your divorce, you should investigate whether a deed of separation (separation agreement) would be of benefit to you.
You can find out more about separation agreements here - or you can contact me for more details.
Two years separation with consent
If neither spouse wants to blame the other for the divorce they must wait at least two years from the date of separation before either of them can begin proceedings.
Both of you must consent to the divorce.
Beware that the two year period cannot include the date on which you actually separated. Therefore you must not file your petition at court in fact until two years and one day have elapsed since the date of separation.
Costs orders are not made in two years separation divorce cases unless they are by agreement.
Would you like help filling in your divorce petition? If so please contact me for more information.
Five years separation
Why might you wait five years after separating to begin a divorce?
- Your spouse doesn't want a divorce; and
- Your spouse is not at fault leaving no other reason open to you.
- You can't afford the court fee; or
- You are generally just putting it off for personal reasons.
As with two years separation above, the date on which you separated cannot be included in the five years of separation, so you must wait until at least five years and one day before the petition is submitted to the court.
Costs orders are not made in five years separation cases.
Get in touch if you would like help with your 5 years separation divorce.
Fault based reasons for divorce
Sometimes, for various reasons, a no fault divorce isn't suitable.
If there isn't agreement on the divorce or you want to divorce sooner than two/five years from separation, you must prove that it is your spouse's fault that the marriage has broken down irretrievably.
You will need to prove that your spouse has:
- committed adultery;
- behaved unreasonably; or
- deserted you for at least two years.
Care should be taken when drafting this sort of petition.
Too much detail in the "particulars" section of the petition can lead the respondent to defend the proceedings.
Too little detail can lead the court to refuse the divorce altogether.
A recent court case in the Court of Appeal shows just how confusing the law on fault based divorce really is when it is put to the test.
I will explain a little about each of the reasons for a divorce below.
What you need to know to use adultery as the reason for your divorce.
- You cannot use your own adultery as the reason for the divorce.
- If you live together as a couple for more than 6 months from the time you discover the adultery you cannot use it as the reason for the divorce
- Adultery must be admitted in writing or you have to be able to prove that the adultery happened.
- You can choose whether to name the person your spouse committed adultery with. If you do, you will have to prove that you have served him/her with a copy of the petition as well and this may cause delay and increase the overall cost.
- Adultery cannot be used to show grounds for divorce in a same sex marriage that has broken down irretrievably. The Same Sex Marriage Act 2013 states that "only conduct between the respondent and a person of the opposite sex may constitute adultery"
For help and assistance with your divorce petition contact me. It doesn't cost as much as you may think.
Unreasonable behaviour is very often cited as the reason for a divorce. I would say it is the most common.
As with adultery, when one person in the marriage behaves unreasonably, divorce proceedings can start as soon as that leads to the marriage breaking down irretrievably. This means there is no need to wait until you have been separated for two years.
Unlike adultery, there are often other witnesses to this behaviour, making it easier to prove even if the other person doesn't admit the behaviour.
And yet, unreasonable behaviour petitions are also the least straightforward.
There is no formula for the number of incidents of unreasonable behaviour that need to be put into a divorce petition.
Some people include far more detail than is actually necessary. Others don't put in enough to justify the ground for divorce.
Unreasonable behaviour doesn't need to be extreme or violent - just unreasonable. Yet it is very easy to cause deep offence with allegations of a spouse's unreasonable behaviour and care should be taken to draft the petition so that any offence is kept to a minimum.
You will find that it is far easier to negotiate a financial agreement with your spouse if you have not made allegations of unreasonable behaviour in the divorce proceedings.
You will also find that it can have an adverse impact on agreeing arrangements for your children if unreasonable behaviour is the reason given for the breakdown in the marriage.
Consider whether there is alternative.
- Do you need to start your divorce straight away?
- Will a separation agreement fulfill your needs until you have been separated for two years?
If you need help deciding what solution is right for you, contact me here.
Desertion is almost redundant as a reason for a divorce.
It is unlikley that anyone would now need to rely on desertion to prove that they had grounds for divorce in modern Britain. There is a good deal of overlap with unreasonable behaviour and separation and they are both easier to
However, if the following four circumstances apply it can still be used:
- You must actually be separated;
- Your spouse must have intended to desert you;
- There can't be a reasonable excuse or reason for the separation; and
- You must not consent to the separation;
If you are considering using desertion as a reason for your divorce I recommend that you take legal advice first. If you need to change your petition after it has been issued further court fees will be payable.
Find out how I can help you:
- Start your divorce;
- Draw up a separation agreement during a period of separation;
- Help you record a financial agreement in a consent order after a decree nisi of divorce.
contact me using the form below.