Grounds for Divorce and www.gov.uk

When I decided to write a blog about the grounds for divorce, I lazily started looking for somewhere to cut and paste the basic law from. Facts are Facts. Once I had these, I could add some explanation. For some reason I ended up on the Government; .gov website. Here is the link;

https://www.gov.uk/divorce/overview

What I found is in Olive green and italics. My notes are in normal type.

 

2. Grounds for divorce

You must show there are good reasons for ending your marriage. You can give 5 grounds for a divorce.

 

This is not correct. In fact there is one ground for Divorce. This is that the marriage has broken down irretrievably. It as serious and as simple as that. Irretrievable breakdown. The marriage is beyond repair. If a marriage isn’t beyond repair, then please do something to try to mend it. Perhaps relationship counselling. or maybe just a holiday. Think about why things are not working and how you can both do things better. Communication is a must. No Solicitor should encourage a client to Divorce, if they are not certain that the marriage has broken down irretrievably.

Where the confusion comes, is that the irretrievable breakdown is proved, by proving one of five “Facts”. These are the Adultery, Unreasonable behavior etc. On one level making the distinction is splitting hairs, but it is an important hair to split. OK, in section 1. of the explanation, it does refer to the breakdown being permanent, but that is on a different page, and may be missed. There are problems with that page too. But the Facts are linked to the ground.

 

Adultery

Your husband or wife had sex with someone else of the opposite sex, and you can no longer bear to live with them.

You can’t give adultery as a reason if you lived with your husband or wife for 6 months after you found out about it.

 

Basically OK. “Cannot bear to live with” = “finds it intolerable to live with them” which is about the same thing. But it is important to note that;

 

Unreasonable behaviour

Your husband or wife behaved so badly that you can no longer bear to live with them.

This could include:

  • physical violence
  • verbal abuse, eg insults or threats
  • drunkenness or drug-taking
  • refusing to pay for housekeeping

 

The gist is OK but the substance is unhelpful.  The petition needs to show sufficient examples of unreasonable behaviour to show the marriage has broken down irretrievably; no more, no less. If the behaviour is relevent to children issues it must be raised as allegations in those proceedings, but in the context of establishing relevant poor parenting or risk to the parent or child. If factual matters are relevent in those proceedings (and disputed) then the Judge will need to examine the evidence. If someone is in danger, the then the behaviour needs to be raised as part of  an application for an injunction. If there is financial misconduct, then permission needs to be obtained from the judge to raise behaviour in finance cases. That is rarely given, and if so, normally relates to financial misconduct.

What is needed here is sufficient examples of unreasonable behaviour to show the marriage has broken down irretrievably. Generally we are all capable of being unreasonable, sometimes, especially within a relationship. Even if we do not think we are being unreasonable, it is easy to do things that the other finds unreasonable. With our antiquated laws (from 1973!), both cannot divorce each other (well, they can, but it is more expensive), so someone has to be blamed. The Unreasonable behaviour therefore needs to be enough to show the that the “Fact” is made out, but no more.
Several tips;

 

 

Desertion

Your husband or wife has left you:

  • without your agreement
  • without a good reason
  • to end your relationship
  • for more than 2 years in the past 2½ years

You can still claim desertion if you have lived together for up to a total of 6 months in this period.

Basically OK. Rarely used. I always liked the idea of “constructive desertion”. The other deserted you by making you leave!  Basically this is Unreasonable Behaviour for patient people.

 

You have lived apart for more than 2 years

You can get a divorce if you’ve lived apart for more than 2 years and both agree to the divorce.

Your husband or wife must agree in writing.

 

 

Or as we Lawyers would say “two years separation with consent”. Always get the consent before you file the divorce papers. If the Respondent withdraws consent and didn’t sign anything and won’t sign anything after the papers have been sent in, its extra expense and hassle to amend the Divorce papers. There is also additional and avoidable ill feeling. But if you have been separated for say 18 months, the better way to proceed, is probably to enter mediation and seek to resolve everything by agreement, and the progress the divorce and financial settlement, speedily when the 2 years arrives.

 

 

You have lived apart for more than 5 years

Living apart for more than 5 years is usually enough to get a divorce, even if your husband or wife disagrees with the divorce

 

Or, 5 years separation, no consent needed. But 5 years is a long time to wait. Also, it is normally easier to sort out finances when both have a better idea about the others financial situation. Neither can fully move on with their lives whilst waiting for the 5 years to come up.

You get the basic idea but…

Its a starting point, but the site oversimplifies and the procedural overview is discouraging of legal advice. The problem is that these are sensitive matters. A badly worded petition, or procedural messing around winds the other up and makes it harder to sort out money and child arrangements. So it is important to get good advice before the petition is drafted.

The other thing not touched on here, is claims for costs. The Petitioner can claim their Divorce costs from the other. This is likely to be £1000 or so including Court fees. Cost claims can be a cause of significant ill feeling, which cause more costs later. Sometimes it is appropriate to include them, but not always, again, sensible advice is required.

Which brings me to the Law itself. The Government has devoted a lot of time and energy to cutting Legal Aid, but time could sensibly have been spent on modernizing and simplifying the Divorce process. Why do we still have his complicated process. It might have mattered to people in 1973, but we live in a much more open and tolerant world these days. Why not have one person file a notice with the Court that the Marriage is irretrievably over; there is a cooling off period to sort out money and child issues (preferably with mediation being the starting point); and then when everything is resolved, final orders/decrees are granted?  You wouldn’t need a Court Fee of £420 as there would be little to be judicially processed… I could go on.  Unfortunately we are stuck with what we have.

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