Famously, one in three marriages ends in divorce. This is a depressing statistic. Divorce can be a hugely traumatic and costly experience for both parties.
A divorce is the ending of the legal contract between husband and wife. A court can only grant a divorce in England and Wales after the couple have been married for at least one year.
There is only one ground for divorce in England and Wales, and that is the irretrievable breakdown of the marriage.
If one person declares they do not wish to continue in the marriage then the marriage has broken down. However, if they continue to live, eat, cook and sleep together then the court is unlikely to grant a divorce. Their actions must back up their wish to end the marriage. Where a couple continue to live together, they may need to show they no longer eat and sleep together.
In order to prove irretrievable breakdown, the person petitioning a court for divorce must show at least one of the following reasons or facts. They must demonstrate this to the level of what is known in legal circles as ‘balance of probabilities’. This means it must be more likely that it is true than that it is not true. This means that if one party alleges it to be true and the other party does not dispute it then the court accepts it as true.
This is the most frequently used fact to show irretrievable breakdown. But what is meant by ‘unreasonable behaviour’?
It could be that the husband or wife has behaved in such a way that the other spouse cannot reasonably be expected to live with them. This breaks down into two elements—whether the behaviour is unreasonable, and whether the spouse can reasonably be expected to carry on living with that person.
The court will look objectively at whatever the behaviour was, and judge whether it is unreasonable. Examples could be cruelty, physical violence, insults, intimate relationships with others, failure to provide money, or any number of other behaviour patterns. There is no need to prove that the person intended to behave unreasonably. The fact they did is enough.
The behaviour complained can be fairly mild, such as the spouse devoting all their time to their career, spending extravagantly or internet-related obsessions.
The court will then look at whether the petitioner can reasonably be expected to carry on living with their spouse. This can depend on the nature of the marriage and the personalities of the people involved.
The most recent example of unreasonable behaviour must have occurred within six months of the day the petition is filed.
The court can grant a divorce where one spouse has committed adultery and the other spouse finds it intolerable to live with them.
This requires admission of, or evidence of, consensual sexual intercourse with another person of the opposite sex. Where the person is of the same sex, this is not legally recognised as adultery, and ‘unreasonable behaviour’ is the more appropriate category. There is no need to name the other person involved (doing so could create further legal problems).
The sexual liaison should have happened within the six months before the petition for divorce is filed. Sexual intimacies short of actual sexual intercourse may be better suited to the ‘unreasonable behaviour’ category.
The person petitioning for divorce cannot be the one who had the extra-marital sex. It must be their spouse.
Two years’ separation
If both parties agree to the divorce, then they can petition the court on the basis they have been living apart for at least two years. They can continue to live in the same home as long as they are ‘living apart’ by having independent lives (not sleeping or eating together).
Five years’ separation without consent
No consent is necessary if the couple have been living apart for five years.
This is very rare. It can be used where a husband or wife has deserted their spouse for a continuous period of two years.
Getting legal advice
These are the facts on which the ground of ‘irretrievable breakdown’ can be founded. This, however, is a very general guide, and legal advice should be sought.
Scotland has a separate legal system. There is a ‘simplified’ divorce procedure, for which a DIY (do it yourself) divorce is possible, and an ‘ordinary’ divorce procedure.
The DIY divorce is available where both parties consent, there are no children below the age of 16, the marriage has irretrievably broken down, and the couple have been living apart for one year.
In order to be eligible to divorce in Scotland, either or both spouses must have lived in Scotland for the year preceding the divorce or consider Scotland to be their principal place of residence.