To petition for divorce the petitioning party must show that there has been an irretrievable breakdown of the marriage. To prove this breakdown they have to rely on one of five facts, which are set out in the Matrimonial Causes Act. They are:-
The party who petitions for divorce has to prove the adultery. This has to take place outside of the marriage and with a person of the opposite sex. This can be established either by the other party admitting to the adultery or by the petitioner having evidence that a sexual relationship has taken place. The adultery also has to be intolerable to live with. If spouses have continued to live together for six months or more from the date the adultery was discovered, it cannot be relied on to prove an adultery petition.
In cases where one spouse is willing to admit to adultery, it is often not necessary for the third party to be involved and it can be a quick way for a divorce to proceed.
People are still reluctant to admit to adultery. There is usually a fear that doing so will lead to a worse financial settlement. This is untrue. If a spouse is not willing to admit to adultery, proving it can be very difficult. In most cases people are unable to provide sufficient evidence and it becomes easier to reply on the next fact, where proof is not required;
- Unreasonable Behaviour that the Petitioner finds intolerable to live with
This is the most commonly used fact to obtain a divorce. The unreasonable behaviour has to be intolerable to live with. It is subjective and from the petitioners point of view.
Usually, four or five examples of the behaviour are included in the petition. These can range from irritating behaviours such as “he never washed the pots” or “she never wanted to socialise with me” to domestic violence allegations. The petition needs to confirm the reasons for the breakdown of the marriage.
The spouse who responds to the petition does not have to agree with the examples for the divorce to proceed. It will proceed, as long as they do not defend the divorce. There is no requirement to prove the examples in an undefended divorce. The divorce can even proceed without the Respondent’s co-operation as long as it can be proved that they received the papers.
It is preferable for the examples of behaviour to be agreed. In cases where both spouses have solicitors this is normally achieved. Where possible both spouses should see a copy of the behaviour examples before the petition is filed at court.
Divorce petitions on the basis of desertion are rare. The Petitioner has to prove that the Respondent deserted them for a period of two years immediately before the date of the divorce petition.
Desertion is rarely used as it can be difficult to prove. Usually one of the other facts applies to the marriage and is more easily established. Desertion petitions can be helpful in cases where the Respondent has vanished from the Petitioner’s life, cannot be found and the Petitioner wants to obtain a divorce without having to wait for five years.
- Separation for a period exceeding two years with the Respondent’s consent
This fact is often used when couples agree that the marriage is over and do not divorce immediately upon separation. After two years have passed from the date of separation a petition can be issued, as long as the Respondent is willing to provide consent. They must provide their consent on the acknowledgment of service. If they do not, the divorce cannot proceed.
It is common practice to establish at the start whether the Respondent is going to consent. This saves money being wasted on a petition being issued, which cannot proceed. If the Respondent is not willing to provide consent, then usually the Petitioner can rely on unreasonable behaviour or wait until they have been separated for five years as set out below.
It is possible to establish separation even when spouses have carried on living together. Evidence has to be provided to show that although cohabitation has continued, the marriage has not. For example the spouses do not share the same bed, they do their own cooking, washing, shopping, have separate finances and live as separate individuals within the same household.
In cases where spouses have separated and then reconciled and then separated permanently, a divorce based on separation for two years can still be used. The reconciliation and any resulting co-habitation that does not exceeded six months can be ignored when calculating the two year period. If it exceeds six months, then the total time of the reconciliation must be added back in when making the calculation.
- Five years separation
This fact can be used when spouses have been separated for five years. The Respondent’s consent is not required. As long as the Respondent is served with the divorce petition, it will proceed.
This fact is usually used where spouses have not got round to formalising their separation sooner or where the Respondent refused to provide consent after two years of separation and no other fact applied at the time.
In all cases it is important to discuss the options with your solicitor. They will advise which is the option most suited to your case. Depending on the circumstances, the divorce may also be suitable for a fixed fee.