Recent research concluded that the grounds for divorce in England and Wales not only undermined “the aims of the family justice system” but also increased “conflict and suffering for separating couples and their children” and encouraged “dishonesty”.
In England and Wales, in order to get a divorce, the petitioner (the person who files for the divorce) must prove that their marriage has irretrievably broken down. The petitioner will have to provide one of five reasons as to why this has happened.
In order to cite unreasonable behaviour as grounds for divorce, you will need to prove that your spouse has behaved in such a way that you can’t reasonably be expected to live with them.
According to the Office for National Statistics’ latest data on divorce, the most common grounds for divorce in 2016 was unreasonable behaviour. For wives who have petitioned for divorce, unreasonable behaviour has consistently been the most common ground since the late 1970s (before this it was named ‘cruelty’). Unreasonable behaviour has been the most common ground for husbands petitioning for divorce since 2006.
There is no specific list as to what constitutes unreasonable behaviour.
If you are the petitioner and cite unreasonable behaviour as the reason that your marriage has irretrievably broken down, the courts will look at whether or not you can reasonably be expected to live with the respondent, given the respondent’s conduct and the effect that this is having on you. The courts also take into account the history of the marriage when making their decision.
Unless there is any evidence showing that the marriage hasn’t really irretrievably broken down and the court comes to the conclusion that the petitioner cannot reasonably be expected to live with their spouse any longer, the court should normally grant the divorce.
Unreasonable behaviour can actually be very subjective. What one person may describe as unreasonable behaviour, another may find perfectly normal and acceptable.
For example, a husband could say that one of the examples of unreasonable behaviour is that his wife is spending every weekend on city breaks away with her friends. Another husband could see this as a benefit, as it enables him to spend weekends watching sport and catching up with his friends.
Some examples of unreasonable behaviour could include verbal or physical abuse, drunkenness or even refusal to pay towards the housekeeping.
Unreasonable behaviour is rarely tested in the courts, as in England and Wales, most divorces go through uncontested, without either spouse defending the divorce.
Earlier this year, however, the papers were filled with reports regarding a woman who was refused a divorce by the courts as she had not proven “unreasonable behaviour”.
This case is extremely unusual but it has led to further calls for the divorce law in England and Wales to be changed. Many argue that no-one should be stuck in a marriage that they don’t want to be in. In this case, the woman involved will reportedly be taking her case all the way to the Supreme Court and will say that she should not have to prove unreasonable behaviour.
Regarding the decision to allow the woman involved to appeal the decision, Nigel Shepherd, Chair of national family justice organisation, Resolution, said:
“In today’s modern society, it should not be the case that someone is being forced to stay in a marriage she does not want to be part of, and is now having to go to the highest court.
“Mrs Owens’ case highlights why divorce law in the UK needs to change. We need to reduce conflict and support separating couples to resolve matters amicably, rather than forcing them to play a blame game where one or both of them thinks the marriage is over. The simple fact is that this case should not have been necessary, and only by implementing a no-fault divorce system can we ensure such a situation doesn’t happen again.
“Support for no-fault divorce is growing, from family law professionals, the public and politicians. Whether it’s before or after the case is heard by the Supreme Court, the Government needs to take urgent action to bring our outdated divorce laws up to date and ensure that Mrs Owens’ experience is not repeated.”
In order to use adultery as grounds for divorce, your spouse will need to have had sex with someone else of the opposite sex.
What many people do not realise is that in the eyes of the law, adultery is only sexual intercourse with someone else of the opposite sex, not someone of the same sex. So if your spouse has sex with someone who is the same gender as them, this would not be recognised in law as adultery and you could not use this as grounds for divorce.
How long the law can continue this way, especially with the increasing number of same-sex marriages, remains to be seen.
It is also important to note that the law regards adultery as ‘sexual intercourse’, not other types of sexual contact.
One important caveat to bear in mind with regards to adultery as a reason for divorce, is that you will be unable to use this ground if you and your spouse continued to live together as a couple for 6 months after you discovered the adultery had taken place.
It is also important to note that it is possible to commit adultery even after you have separated from your other half.
It is a common misconception that after a married couple have separated (but not divorced), sexual intercourse with another person is not adultery. The law does not agree. If you have sexual intercourse with someone of the opposite sex while you are still married, you may still be committing adultery and your spouse could use this in your divorce proceedings.
One of the reasons why unreasonable behaviour may be more commonly used as grounds for divorce than adultery, is that adultery can often be more difficult to prove than unreasonable behaviour, especially if your spouse and the other person involved refuse to admit that it has happened.
Additionally, citing unreasonable behaviour can often be less inflammatory than adultery and some people believe that the divorce process can be kept more amicable by using unreasonable behaviour.
Many people worry that adultery will have an adverse effect on how the court will regard arrangements for children upon divorce. However, adultery on a divorce petition will not in itself adjust a judge’s thinking regarding arrangements for children.
In order to use desertion as grounds for divorce, you will need to prove that your spouse has left you for more than 2 years in the past 2.5 years. They must have left without a good reason, without your agreement and have done it so that they could end the relationship.
You could still use desertion as grounds for divorce even if you have lived together for up to 6 months during this period of time.
If you’ve been separated for more than 2 years and you both agree on the divorce, then you can use this ground.
Even if you both don’t agree to the divorce, you are able to use this ground as long as you’ve been separated for 5 or more years.
In England and Wales, it is necessary to wait until you have been married for a minimum of one year before you can get a divorce.
It is possible, under some limited circumstances, to get an annulment instead of a divorce. Annulment is another way of ending a marriage.
If you want to get an annulment, there is no need to wait until you have been married for a year.
In order to get an annulment, you will need to show that your marriage is either void (not legally valid) or it is voidable (defective).
An example of a void marriage, is if one of you was already married when you got married.
An example of a defective marriage, is if you and the person you married did not consummate the marriage (you haven’t had sex since you got married).
For more information about annulment and advice about whether you could annul your marriage instead of getting a divorce, speak to a solicitor.
In England and Wales, it makes no difference who is the respondent and who is the petitioner. However, this is not the case in all countries. Whether you are the respondent or the petitioner could make a difference to the outcome if you divorce in another jurisdiction.
If you believe that your divorce may have an international element, to is vital to seek legal advice as early on as possible in the divorce process.
In order to get a divorce in England and Wales, one party needs to place blame on the other in order to show that their marriage has irretrievably broken down.
Some believe that this culture of blame creates more animosity between divorcing spouses and helps to fuel feelings of resentment towards the other spouse, which are not constructive when it comes to negotiating financial settlements and arrangements for any children involved.
One of the most passionate campaigners for change in this area of family law, is the national family justice organisation, Resolution.
Speaking about the new research regarding the current state of divorce law in England and Wales published by the Nuffield Foundation, Nigel Shepherd, the Chair of Resolution said:
“Fault-based divorces don’t reflect the reality of relationship breakdown for the majority of couples and do nothing to help them deal constructively with the consequences – indeed they often have the adverse effect of inciting additional conflict between separating partners.
“It’s time to make no-fault the default.”
“The current system, which is unchanged since the beginning of the 1970s, encourages a charade at best, and at worst actively drives a wedge between couples who might otherwise be able to remain on good terms during a divorce. This is bad for them and bad for their children.”
He went on to talk about how many couples were forced to play what he called the “blame game” in order to satisfy an “archaic” requirement on divorce petitions.
He added: “With tens of thousands of couples divorcing each year, every day the government delays will see hundreds more forced into a conflict-driven and often destructive divorce system.
“Until this changes, there is a real risk of lasting damage being done to those individuals and – crucially – any children they may have.”
It is a good idea to obtain independent advice from a solicitor about grounds for divorce. A good solicitor should listen to your reasons for wanting a divorce from your partner and advise you as to which grounds for divorce may be most suitable for your circumstances.
Your solicitor should also be able to talk to you about ways to help make the divorce process less confrontational and negotiations more productive, such as collaborative law.
Our expert family law solicitors can help you with a range of legal issues relating to the grounds for divorce, including:
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