Unfortunately, sometimes marriages come to an end. There are many possible reasons for this often unique to the parties involved. We understand what a confusing and emotional time this is for everyone involved.
You can only petition for divorce if you have been married for one year. If you seek to end your marriage prior to this you may need to explore whether or not you can petition to have the marriage annulled or made void. This is very rare. Please contact us for advice if you think this applies to you.
There is only one ground for divorce and that is that the marriage has broken down irretrievably. The person who starts the divorce proceedings is known as ‘the petitioner’ and their spouse is called ‘the respondent’.
To satisfy the court that there has been an irretrievable breakdown the petitioner must prove one of the following five facts:
(a) The respondent has committed adultery and the petitioner finds it intolerable to live with the respondent.
(b) The respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent.
(c) The respondent has deserted the petitioner for a continuous period of at least two years immediately before the start of the divorce.
(d) You have lived apart for a continuous period of at least two years immediately before the start of the divorce and the respondent consents to a decree being granted.
(e) You have lived apart for a continuous period of at least five years immediately before the start of the divorce.
Most divorces are based on facts (a) ‘adultery’, (b) ‘behaviour’ or (c) ‘two years separation with consent’. We can advise you on the best way to proceed based on the facts leading to your decision to divorce.
Because ‘unreasonable behaviour’ is a subjective test, more or less any behaviour of your spouse that leads you to believe that the marriage has irretrievably broken down, can be cited in the petition.
For this reason in appropriate cases, it is still possible to achieve an amicable divorce even when petitioning for unreasonable behaviour.
Regularising your separation
If you would prefer to regularise your separation without actually divorcing there are two options available:
1. Judicial separation;
2. Separation agreement.
This involves a court procedure which is virtually identical to that which applies to a divorce. The essential difference is that the court pronounces a decree of judicial separation rather than a divorce and therefore you and your spouse would remain married. The main reason people choose judicial separation over divorce is for religious reasons or if valuable pension benefits are lost on divorce. However, since the court can now share pensions, this is no longer as important as it once was.
Many couples prefer to reach an agreement about financial matters arising out of their separation without involving the court at all. The way this can be achieved is for them to sign a written document which incorporates the agreement they have reached. Commonly, such agreements deal with confirmation that the parties to the marriage are to live apart and the manner in which any maintenance and property issues are to be dealt with. Whilst there are no restrictions on what can or cannot be included in such an agreement, it is important to bear in mind that if either person makes a subsequent financial application to the court, the court is not bound by the financial arrangements in the separation agreement.
Professional Legal Advice on Divorce in the UK
Please call us if you want to discuss your options and would like advice on divorce or separation. We are able to assist you in finalising matters whichever option you choose.