Grounds for Divorce
Divorce is a process which allows married couples to legally separate from each other as a husband or wife. The Grounds for divorce are following;
· Irretrievable breakdown in the relationship
· Unreasonable behaviour
· Two years separation with consent
· Five years separation without consent
· No-fault divorce
The law in relation to divorce is governed by the Matrimonial Causes Act 1973. Approximately 115,000 couples divorce each year in England and Wales. Further, less than 1% of all divorces are defended.
Divorce is only granted where a petitioner can prove that the relationship is irretrievably broken down. However, the court cannot hold that the marriage has broken down unless the petitioner satisfies the court of one or more of the five facts specified below.
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What is included in the grounds for divorce;
- One-year rule
- Irretrievable breakdown
- Unreasonable behaviour
- Two years separation with consent
- Five years separation without consent
- No-fault divorce
Under Family Law, a petition for divorce cannot be presented to the court before the end of a period of one year from the date of the marriage. The reason for this restriction is to discourage over-hasty decisions to end such short marriages. The rule cannot be waived in any circumstances. However, if grounds for divorce can be satisfied, a petition may be presented after one year based on matters that occurred during this time.
It is the petitioner’s responsibility to prove that the relationship has irretrievably broken down, and they must establish one of the following five conditions in order to obtain a divorce. If the courts are not satisfied the marriage has irretrievably broken down, a divorce will not be granted.
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Adultery is defined as voluntary sexual intercourse between two persons of the opposite sex, one or both of whom is or are married, but not to each other. The applicant must prove that the other party has committed adultery and the applicant finds it intolerable to live with the other party.
Adultery may be proved or inferred from the following:
- A confession of adultery by the respondent.
- Circumstantial evidence
- The birth of a child to the wife where the husband is not the father.
- You cannot rely on your own adultery.
- The petitioner is not entitled to rely on adultery committed by the respondent if the parties cohabit for a period, or periods together, exceeding six months after the petitioner has discovered the adultery.
The person with whom the respondent committed adultery can be made a party to the divorce proceedings and is called the co-respondent. However, even if the co-respondent is made a party, it is not necessary to obtain an admission of adultery from the co-respondent if the respondent admits the adultery, because the fact requires only evidence that the respondent has committed adultery.
Intolerability must be proved as well as the adultery. It is worth noting that, in the first place, the petitioner does not have to show that it was in consequence of the adultery that he found it intolerable to live with the respondent.
The petitioner must prove that the other party (respondent) has behaved in such a way that the applicant cannot reasonably be expected to live with the respondent.
The phrase ‘cannot reasonably be expected to live with the respondent’ lays down an objective test. The court must make a value judgement about the respondent’s behaviour and its effect on the petitioner. The court will consider a wide range of conduct and, will rely on a series of incidents.
Desertion is defined as ‘an unjustifiable withdrawal from cohabitation, without the consent of the reaming spouse and with the intent of being separated permanently”.
Desertion is as follows:
- There is a separation.
- There must be an intention to desert
- The petitioner must not consent or agree to the separation.
- The respondent must not have a just cause for leaving.
- The desertion must be continuous.
- The law does not require proof of wrongdoing.
- 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 couple must be living apart unless they can prove they are living together but with each living separate lives.
Often it is the children who are most affected by
the divorce itself and during the process
of obtaining a divorce.
Especially where there is hostility between
the married couple.
- The petitioner can rely on the fact that the parties have been separated for 5 years prior to the date of the petition.
Once the petitioner has established their grounds for divorce, and provided satisfactory evidence, the court will award decree absolute and the marriage will officially end.
The UK government has agreed to introduce legislation to overhaul the divorce system for the first time in more than 40 years and allow couples to apply for a divorce without apportioning blame for a marriage breakdown.
A no-fault divorce system currently exists in Scotland, Australia and the USA.
The new law, which will apply to marriages and civil partnerships, will remove the need to show “fault” or evidence of the other spouse’s behaviour and will end the right of one party to contest a request for a divorce.
The Ministry of Justice said couples will have a minimum six-month period to “allow for reflection” between requesting a petition for divorce and the act becoming final. The department said the new legislation would be tabled “as soon as parliamentary time allows”.
This decision followed the landmark case in which, a wife asked the Supreme Court of the United Kingdom to grant her a divorce on the grounds that her husband was moody, argumentative and she was unhappy with him.
The couple married in 1978 and started living separately in 2015. The petitioner (wife) filed for divorce in 2015 and alleged that their marriage had broken down irretrievably due to the unreasonable behaviour of her husband. The petitioner provided examples of unreasonable behaviour including that her husband had been moody and argumentative and had disparaged her in front of others. The respondent (husband), contested the divorce but did not deny that he was moody and argumentative.
The Supreme Court dismissed her appeal and found that the claims of unreasonable behaviour were significantly exaggerated. They also pointed to the fact that there is no scope of no-fault divorces under the current law and the petitioner had to remain married to the respondent for the time being.
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