To legally separate from your husband or wife.
The Procedure of applying for a Divorce
A divorce is granted on the basis of a petition where one party (petitioner) presents an application for divorce which the other party (the respondent) may choose either to defend or not.
The petitioner simply needs to lodge at the court the petition outlining the grounds for divorce including;
- A statement concerning the arrangements for the children is applicable and,
- An affidavit confirming the truth of these documents.
The court will work on the assumption that if the respondent does not attempt to defend his or her petitioner then the formal paperwork can be assumed true and the district judge will pronounce a decree nisi.
- An order by a court stating the date on which a marriage will end unless a good reason not to grant a divorce is produced.
- Any time after 6 weeks from the decree nisi the petitioner can apply for a decree absolute.
- If the petitioner fails to apply then the respondent can apply for the decree to be made absolute any time after three months from the decree nisi.
- The court has a discretion to refuse to make the decree absolute if there are financial matters involved.
- A decree absolute is the court final order officially ending a marriage, enabling either party to remarry.
- The divorce does not take into place until the decree absolute.
Time to apply for a Divorce
- It is not possible to petition for divorce until the couple have been married for at least one year.
Grounds for a Divorce
The sole ground for divorce is set out in the Matrimonial Causes Act 1973 which states that: The marriage must have irretrievably broken down.
- The only way of proving that the marriage has irretrievably broken down is by proving one of the five facts within the Act
- If none of the five fact can be proven, a divorce will not be granted.
- BUT if one of the five fact is made out and the courts are not convinced that the marriage has irretrievably broken down, a divorce will not be granted.
These five facts include:
- You cannot rely on your own adultery as a ground for divorce.
The respondent’s adultery
- Adultery is defined as involving a voluntary act of sexual intercourse between the husband or wife and a third party of the opposite sex.
- Homosexual intercourse or other forms of sexual activity not involving sexual intercourse will not constitute adultery, but may constitute as unreasonable behaviour under Section 1(2)(b).
The petitioner will rely on the fact that the respondent has committed adultery and they find it intolerable to live with the respondent. However, it is worth noting that
- Adultery is restricted to sexual intercourse between people of the opposite sex,
- It is not enough to just show that the respondent had committed adultery, as it is also necessary to show that the petitioner finds it intolerable to live with the respondent.
- It is not necessary to show that the reason why the petitioner cannot live with the respondent is due to the adultery.
Mary finds out that her husband Cooper has been having an affair and decides to forgive him. However, later the relationship breaks down for some other reason. The adultery fact can be made out in Marys petition unless Mary and Cooper have decided to live together for more than 6 months after the act of adultery then the petition cannot be based on the act of adultery.
If the respondent defends the petition and denies the adultery, then the petitioner must prove it. The court however, are willing to find that adultery took place if it could be demonstrated that the parties had the inclination and opportunity to commit adultery.
The wife was seen dining with a man and returning to a hotel room to spend the night with him. If true the court may be willing to assume that adultery took place.
- Does the petitioner finds it intolerable to live with the respondent?
- Irrelevant as to what most would or would not find intolerable to live with therefore, it is only the reaction of the petitioner which is relevant.
- A petitioner can rely on the ground that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with him or her
- It is not enough to just prove that the respondent has engaged in unreasonable behaviour
- BUT, it must be behaviour that a right-thinking person would think was such that this petitioner cannot be reasonably expected to live with
- A wide range of conduct can be included for example domestic violence
- It is possible to rely on a series of incidents which, although minor in themselves cumulatively establish that the petitioner cannot live with the respondent.
“Dripping water wears away the stone”
Tolerable Unreasonable Behaviour
- If the spouses decides to live together for 6 months after the last incident of unreasonable behaviour referred to in the petition, the court will take into consideration whether it was reasonable to expect the petitioner to live with the respondent.
- However, if the period is less than 6 months, the fact that the parties lived together after the incident cannot be taken into account.
Desertion is defined as ‘an unjustifiable withdrawal from cohabitation, without the consent of the reaming spouse and with the intent of being separated permanently”.
- If the petitioner can show that the respondent has deserted them for a continuous period of 2 years preceding the petition, this could form the basis of the divorce application.
- BUT If the desertion is justifiable it cannot be relied upon.
Mary decides to leave Mustafa when he decides to move in a ‘second wife’.
Two years separation with consent
Two years separation with the respondents consent to the divorce:
- If the petitioner can establish that there has been two years separation immediately before the petition was made and that, the respondent consents to the petition, a divorce can be granted.
- The law accepts that a divorce can be obtained by consent without proof of wrongdoing.
- The couple must be living apart unless they can prove they are living together but with each living separate lives.
If the couple do not speak, eat or sleep together they will be considered to be living apart.
The decree absolute is not to be made unless the court is satisfied that the petitioner should not be required to make a financial provision for the respondent, or that the financial provision made by the petitioner for the respondent is reasonable and fair or, the best that can be created under the circumstances.
Five years separation without consent
Five years separation without consent from both parties:
- The petitioner can rely on the fact that the parties have been separated for 5 years prior to the date of the petition.
If the petitioner relies on the ground of five years separation, the respondent who does not wish to divorce can rely on the defence that, it would result in grave financial or other hardship and would be wrong in all circumstances to dissolve the marriage.
- It is also not enough to just show hardship; it is also necessary to show that it would be wrong in all circumstances to grant the decree.
- If the court believe this to be the case they can decide to adjourn until the husband or wife voluntarily make necessary financial agreements.
The law on dissolution of civil partnerships is almost exactly the same as divorce. Like divorce, the grounds must be that the civil partnership has broken down irretrievably. This can be proved by establishing one of four facts:
- Unreasonable behaviour
- Two year separation with consent
- Five year separation without consent.
Absent from the list is adultery. This is because the legal definition of adultery is only in terms of heterosexual intercourse.
While every effort has been made to ensure the accuracy of the information provided in this article, it does not constitute legal advice and cannot be relied upon as such. Each legal case and issue may have unique facts and circumstances, as a result legalally does not accept any responsibility for liabilities arising as a result of reliance upon the information provided. For further help and guidance, you can always rely on and seek advice from our experienced lawyers.