What are the five reasons I can give for divorce?
Whilst many people refer to grounds for divorce, under Section 1 Matrimonial Causes Act 1973 there is only one ground for divorce and that is that the marriage has broken down irretrievably, ie there is no chance of reconciliation. An experienced family lawyer will be able to sense when someone is not quite ready for the process and will suggest that more consideration is given. It is a major decision and not one to be taken lightly.
It is the duty of the Court to be satisfied that there is irretrievable breakdown after considering what both parties have to say (if the respondent does not think the marriage has irretrievably broken down then he/she can defend) but the Court is not as strict as it was – undefended divorces have been dealt with by way of paperwork into Court rather than hearings since the 1970’s with the introduction of “special procedure” - and the fact that one person has issued a divorce petition gives a clear indication that something is amiss!
In order to show irretrievable breakdown, the petitioner must rely on one of the five facts below.
Section 1(2)(a) of the Matrimonial Causes Act 1973 (“MCA 1973”) defines this as
‘the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent’
Both parts of the definition need to be shown, so not only does there have to be adultery, the petitioner needs to find it intolerable to live with the respondent.
Adultery was defined as 'consensual sexual intercourse between a person who is lawfully married and someone who is not their spouse’. It has always been the case that the person with whom adultery was being committed must be a person of the opposite sex but on 13th March 2014 a new Section 1(6) was added to the Matrimonial Causes Act 1973 which clarified that only conduct between the respondent and a person of the opposite sex may constitute adultery following the introduction of the Marriage (Same Sex Couples) Act 2014.
It is a common belief that if parties have already separated and one of them commences a relationship then this is not adultery. It still is, as the parties are still legally married.
In relation to whether the petitioner does find it intolerable to live with the respondent, we need to look at what stage the parties separated. If the petitioner found out about the adultery but the parties continued to live with each other as husband and wife for one continuous period of six months or several periods which when added together exceed six months, then a petition cannot be based on adultery and behaviour must be used.
Therefore, if a petitioner discovers the adultery in say April but continues living with the spouse as husband and wife until November or after, then adultery cannot be used. Alternatively, if for example, the parties stay together for say three months after the adultery has been discovered, then separate but then try to give things another go, and they are together for over three months before separating again, adultery cannot be used. In both circumstances the petitioner will have to rely on behaviour but they can still refer to the adultery as part of the behaviour.
If you continue to live with your spouse for less than six months after discovering the adultery or any attempt or attempts at reconciliation, when added together, do not exceed six months, then a petition can be brought on the basis of adultery.
It is also important to note that separation can occur even though the parties remain living under the same roof. Provided that you are not sleeping in the same bed, not cooking or cleaning for each other, not eating meals together, not spending time with each other and not socialising together, then you can be classed as “separated”. The date of separation does not necessarily mean the date that someone physically moved out of the marital home as, in a lot of cases, neither can afford to and they have no friends or family that they can stay with temporarily.
Section 1(2)(b) of the MCA 1973 defines this as
‘the respondent had behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent’
Most people believe that the behaviour has to be serious, and indeed in many cases we will have behaviour such as domestic violence and abuse, drug/alcohol addictions, refusal to participate in married or family life. Sometimes the behaviour is brought about through something which may be beyond the respondent’s total control, such as mental health issues. In these cases it is frequently the failure of the respondent to seek appropriate help or to continue with medication and/or therapy which brings about the demise of the marriage. It can be difficult to help someone who will not help themselves.
Behaviour is referred to as “unreasonable behaviour” even by the Court, however the definition states that the petitioner cannot reasonably be expected to live with the respondent because of their behaviour. Therefore behaviour can cover almost everything and it does not need to be a set of allegations or accusations. It is what that particular petitioner can put up with from the person they are married to. What is a “deal breaker” for some may not be such for others. Many potential petitioners are relieved to hear this particularly if the parties have simply drifted apart. An experienced family lawyer can find sufficient behaviours to enable a petition to proceed even in the most amicable of separations.
For example, if the parties have drifted then they are usually socialising separately by choice, perhaps they want different things out of life eg one may want to travel, the other not, one may become irritated with what they see to be the other’s lack of ambition or drive. A lot of the time a petition can focus on how the respondent’s behaviour made the petitioner feel rather than saying the behaviour itself was wrong. It does not need to turn into a mud-slinging exercise.
One thing to note however is that if a petitioner gives the date for the final incident in the petition but then the parties continue living together as husband and wife for a period or periods exceeding six months, then there may difficulties in the petitioner proving that they could not reasonably be expected to live with the respondent.
We would refer back to the Adultery section and the paragraph regarding separation and that this does not necessarily mean that the parties must be living in separate houses. It is possible to be separated under the same roof provided there are two separate ‘households’.
A behaviour petition is what family lawyers will recommend is used when the respondent will not admit to adultery or they will not consent to a divorce even if the parties have been separated for over 2 years (but under 5, as petitions based on 5 years’ separation do not need the consent of the respondent). On the Acknowledgement of Service form, the respondent can state that they do not accept the allegations but will not be defending. If the respondent does not respond then there are further applications that can be made so that the divorce can proceed.
Section 1(2)(c) of the Matrimonial Causes Act 1973 defines this as :-
“the respondent has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petition”
This can be a difficult one to use and a petitioner will be advised to use behaviour or indeed 2 years’ separation with consent.
There are two things that need to be satisfied for a desertion petition to be successful. The first is that there has been desertion. There is no clear definition for desertion however the petitioner will need to show that:-
• There has been a separation
• The respondent intended to desert the petitioner
• There was no consent to the separation by the petitioner
• There was no reason for the respondent to leave
• The desertion is continuous
• The desertion has happened immediately before the petition is filed
The main difficulty arises in proving that the respondent intended to desert the petitioner. If the respondent has ended the relationship and then left the home then this will not be desertion. If the petitioner thought all was well and that say, for example, the respondent was going to be working away, but the respondent knew all along that they would not be returning, then this could be classed as desertion.
The second thing that needs to be satisfied is that the desertion has been for a continuous period of at least 2 years. There cannot be several periods of separation totalling 2 years.
You can still claim desertion if you have lived together for a period or periods of up to 6 months in this time but as this period does not count towards the two years, then the period of desertion is effectively extended to 2 years and six months.
4. Two Years’ Separation with Consent
Section 1(2)(d) of the Matrimonial Causes Act 1973 defines this as:-
‘the parties to the marriage have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition and the respondent consents to a decree being granted’
As with desertion, there are two parts that need to be proved; (i) that the parties have lived apart for a continuous period of 2 years and (ii) the respondent consents to the divorce going ahead.
Please refer to the previous paragraphs relating to living apart under the same roof. You do not have to be physically separated from the respondent provided there are two separate households. Therefore, if you and your husband/wife decide that the marriage is over but neither of you can afford to move out, and you continue to live separate lives but in the same property, the period of separation will begin from the date that the decision was made and not from when one of you leaves.
It is advisable to try and find out the views of the respondent before issuing a petition based on two years’ separation with consent as if it is clear that they are not willing to co-operate then a behaviour petition may be the preferred option.
This is normally done by a family lawyer writing to the respondent with a Form of Consent before the petition is drafted. This form will ask the respondent to agree the date of separation and that they have no objection to the divorce proceeding. If the form is signed and returned then the petition can be prepared on the basis of two years’ separation with consent, if not then a behaviour petition should be considered. Unless, of course, the petitioner confirms that the respondent has made it clear he/she will agree but has always been useless at returning paperwork!
As the respondent will need to confirm that they give consent to the divorce on the Acknowledgement then it is vital that some enquiry is made about their views before the petition is issued.
5. Five Years Separation
Section 1(2)(e) of the Matrimonial Causes Act 1973 defines this as :-
‘the parties to the marriage have lived apart for a continuous period of at least five years immediately preceding the presentation of the petition’
In order to apply for a divorce on this fact you will only need to show the date of separation. The respondent does not need to give consent and, as with behaviour, if the respondent does not engage then there are steps that can be taken in order for the divorce to proceed.
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