To start the divorce process you must have been married for more than one year. You must complete a form, called a 'divorce petition', giving the reasons why you want a divorce, and showing to the court that your marriage is over. The divorce petition is the form that starts every divorce.
There is only one ground for divorce, and that is called irretrievable breakdown. However irretrievable breakdown is defined in 5 different ways. These five reasons are known as the "grounds" that you are must use to use for your divorce.
Therefore to have your divorce approved by the court you must show to the Judge that your marriage has what they call "irretrievably broken down". This irretrievable breakdown has five different meanings and you have to then try to pick one of them that bests suits your circumstances. The 5 categories are:
• Unreasonable behaviour
• desertion for a continuous two-year period
• two years' continuous separation and your spouse's consent
• five years' continuous separation with or without the spouse's consent
We will now look at each of the five grounds for divorce. After this discussion you will have a better idea of which ground your divorce you wish to use, and how to best present your grounds for divorce to the court.
We all think we know what adultery is, but for divorce purposes, the divorce court has a special definition of what adultery means and it is in two parts. Firstly you need to show that your spouse has had voluntary sexual intercourse with another member of the opposite sex. The second thing you have to prove is that that this is intolerable to you. If you cannot show both of these then you cannot prove adultery.
The first part of the definition means that you have to show to the court that your spouse has had sex with another person. If your spouse then admits it when they respond to the court papers served on them, then the judge will accept this response and you will not have to prove it further. However if your spouse denies the adultery, this can then be difficult. To prove your case you will have to file evidence at court to prove the adultery. .
However if your spouse admits the adultery, or once you have such proof that they have committed the adultery, then all you will have to decide if you wish to name that other person in your divorce petition.
The second part of the court's definition of adultery is that that you also have to deal with the fact that the knowledge of the adultery is intolerable to you. If it is intolerable to you can state that because of the adultery you find it intolerable to live with the spouse. Simply writing down that it is intolerable to you is enough. It is highly unlikely that you are going to be asked to prove it.
Two other points of note on the ground of adultery: Firstly, if you are still living with your spouse, the adultery claimed must be within 6 months of you finding out about it. Secondly, if you are not living with your spouse, for example you separated after the adultery became known to you, then that six month period does not start to run. You can therefore start your divorce on the grounds of adultery despite the fact that it has been more than six months since you found out about the adultery.
In legal terms, this means that your spouse has behaved in such a way that you cannot be expected to live with them. This is presently the most common ground for divorce in the UK. Examples of the most commonly stated grounds are:
• Excessive drinking
• Refusing sexual contact or excessive sexual demands.
• Money disputes.
• Excessive insults
The above are some of the most common but not necessarily ranked in order of usage as a ground for divorce. However if your prime concern is getting the divorce through quickly the usual advice of a good solicitor would be that you should not choose circumstances that are most likely to upset your spouse and cause them to refuse to admit them. For example if you put down on your divorce petition that your spouse is "the biggest bore in England" or that they are the "biggest nag in history", or some other generally derogatory statement, your spouse would likely be reluctant to sign the divorce papers if means that they have to agree with those derogatory or insulting comments about them. So if possible, finding grounds that your spouse will consent to is important because unless they sign to accept the allegations of unreasonable behaviour then it may delay your divorce whist your partner may ask for these words to be removed. It could also sour the divorce and make future negotiations with your spouse difficult. Ideally your partner would signs the divorce papers promptly. They may not co-operate or sign them if you are perceived by your spouse to be insulting and derogatory. This is important that this is taken into account in the wording of any divorce petition based upon unreasonable behaviour. With more careful wording, your partner will be more likely to sign the divorce papers to approve them and return them to the court quickly and that way your divorce can proceed with minimum delay.
This ground for divorce is used when your spouse has deserted you for a period of at least two years. However before the court will allow a divorce on this ground the judge will check carefully the following points:
- The desertion must be without your consent. What that means is that you must not have approved the desertion. So for example, if you agreed for your spouse to leave then you cannot then say that they have deserted you.
- Your spouse must not have a reason for leaving other than that they wanted to leave you. So for example, if your spouse had been posted abroad as a part of their job, or even sent to prison, this is a reason why they have left you and not because they just wanted to desert you.
- You need to show a complete breakdown of communication.
- It has to be two years. Any period of cohabitation will not be added.
Desertion is the least used grounds for divorce, and many lawyers avoid this ground. However there is one circumstance where this ground divorce can be useful. If you were intending to use the ground of two years separation and consent but your spouse will not consent to a divorce on that ground, then using this ground can be useful because the consent of your spouse is not needed. But other that example, this ground for divorce is used less frequently than any other.
Two Years' Separation and Consent
This ground for divorce would be used in a case where you and your spouse have lived apart for a continuous period of two years or more, immediately preceding starting your divorce, and that your spouse will sign a form to consent to a divorce being granted for this reason.
When using this ground, you will need to state in your divorce papers the date when you considered that the marriage was at an end. This is usually the same date that you and your spouse separated. In some circumstances that date may be different, for example if you and your spouse are still living together. It is still possible to live together yet be separated. It is called "living as two separate households under the one roof", but if you wish to bring your divorce on the basis of two years separation despite the fact that you are both living as two separate households under the one roof, in such cases the court will look very carefully at the living arrangements, and may call for a statement setting out your living arrangements. In this latter situation, where you are still living under the one roof, it can be tricky because the Judge may look more carefully than usual at your statement and try to decide if they think you are actually still living together in an unhappy marriage rather than separated. Two cases below set out and explain the difference between the two.
There was the divorce case of Mr Littlewood vs Mrs Littlewood. Here the application for divorce was by the man. He and his wife still lived together in the same house. The Husband applied for divorce on the grounds that they lived in the same house together but as two separate households under the one roof. But when asked to give more information he wrote that they had not had sex for 8 years, did not sleep together and lead their own lives. They did not speak for days at a time. But his wife would do his ironing and made his sandwiches for work, and did his washing. When this went to court the judge refused the divorce. That in his view it was just an unhappy marriage. That there was co-operation between the man and wife, albeit small, which meant that in the judge's view there was a relationship there. So a divorce was refused.
This contrasts with the case of Mr Brick vs Mrs Brick. Here, the petition for divorce again was by the man. He applied for divorce on the ground that he and his wife lived in the same house together but as two separate households under the one roof. When asked to give more information he wrote that he and his wife did not speak and communicated by notes only. That they did buy joint food but each cooked their own meals and she did not cook for him. In this case the divorce was allowed. This is because the judge formed the view that this really was two separate households. There was no sharing and no relationship.
So from the above you can see that if you are still in the same house as your spouse and you use this ground, there can be delay whist the judge investigates to see if in his view the degree of separation is enough. He can call for evidence of the details of your separation, which will require you to file a detailed statement of the living arrangements with your spouse. If the judge decides to do this, it can stop your divorce being quick divorce whist the judge examines the statements. Time will go by as you are asked to explain the details of the separation living arrangements, and also the time whist the judge considers this, this can slow up the divorce. This needs to be borne in mind if you chose to divorce on this ground whist living as "two separate households under the one roof"
Five Years' Separation
This ground for divorce is similar to the above in that it is based on a period of separation, although this time the time period is five years of waiting and not two as under the previous ground. However there is one crucial difference: You don't need to have the consent of your spouse. That does not of course mean that you can get divorced without your spouse being informed of your application for divorce. You will still need to show the court that your spouse has been served with the divorce papers. In the experience of many divorce experts, under this ground showing proof to the court that your spouse knows about the divorce is often one of the biggest problems. After 5 years, invariably you have lost contact with them, or cannot trace them to have the divorce papers served. You may even need to make an application to the court for the judge's approval to do away with notifying your spouse because you can't trace them. Alternately you can employ the services of a private detective to try to trace them so as to show to the court that you have made all reasonable efforts to locate them. This is a service that can be arranged for you by us. Simply select this from our services on offer we can arrange for one of our agents to attempt to trace your spouse using a tracing detective or indeed employing a specialist solicitor to make an application to court to dispense with having the divorce papers posted to your missing spouse.
Each of the grounds for divorce above has its own problems and pitfalls, but by employing the services of a solicitor to at least draft the divorce petition is the best way to overcome this most complex part of the case. Hopefully from then on the rest of your case should proceed without difficulty. But each part can have its own problems.
Should you wish for us to take over your case, please contact us on 01582 967707 or email your papers to us. We will then call you back and together you and one of our team can take your divorce forward.