The terms “divorce” and “dissolution” are often used interchangeably. No matter what the semantics, the end result is that the marriage or civil partnership comes to an end.
In order to obtain a divorce or dissolution, you must have been married or in the civil partnership for at least 12 months before the issue of any petition. You must also be able to show that the marriage or civil partnership has irretrievably broken down, on the basis of one of the following:-
- Your spouse has committed adultery (same sex couples in a civil partnership cannot rely on this fact however so this would only apply if you are married);
- Your spouse has behaved in such a way that you cannot reasonably be expected to live together (often simply referred to as “unreasonable behaviour”)
- You have been separated for at least two years and your spouse agrees that you should divorce/dissolve the civil partnership;
- You have been separated for at least five years – the consent of your spouse to the divorce/dissolution process is not required here but he/she may dispute the separation has been for such a period or be able to raise the defence of grave hardship in response
- Your spouse deserted you more than two years ago.
I am most commonly asked about two of these grounds: unreasonable behaviour and adultery.
For behaviour to be deemed to be unreasonable it can be construed quite broadly.
To establish unreasonable behaviour you must prove that your spouse has behaved in such a way that you cannot reasonably be expected to live with him/her. This is both a subjective and an objective test. The court will ask whether any right-thinking person would come to the conclusion that your spouse has behaved in such a way that you cannot reasonably be expected to live with him/her, taking into account the whole of the circumstances and the characters and personalities of both of you.
The requirement is to detail in the petition what the behaviour was and how it has impacted upon you, so you will need to be able to provide examples (in the region of four or five is usual practice). It is then a question of fact whether the behaviour cited is sufficient to demonstrate the irretrievable breakdown in the marriage or civil partnership.
In practice, the allegations of behaviour do not have to be serious and to minimise acrimony, listing more anodyne particulars of behaviour is encouraged.
By way of example, the types of behaviour raised could include the following:-
- A lack of sexual intimacy;
- Verbal abuse;
- Prioritising work or hobbies above family life;
- Failure to help around the home.
This is not an exhaustive list and what is detailed as unreasonable behaviour will vary depending on the facts of each case There also does not need to be a causal link between the facts listed and the breakdown of the marriage or civil partnership: the facts simply evidence the breakdown of the marriage or civil partnership. Once the facts are established, a presumption of irretrievable breakdown of the marriage or civil partnership is then presumed.
Adultery is defined as voluntary sexual intercourse between a man and a woman who are not married to each other but where one or both of whom is or are married.
For this reason, adultery cannot be relied upon in dissolving a civil partnership or by a same sex couple unless the spouse’s sexual intercourse was with a person of the opposite sex.
For a petition citing adultery to advance undefended, the adultery will either need to be formally admitted or proven.
Contrary to popular perception, the third party with whom the adultery has been committed does not need to be named in the petition.
It may be tempting to do this – and you may well feel like you should – but it will not change the facts. Naming the third party will mean they have to be served also with the petition and have a right of response. This may prolong matters (and so increase costs) as well as negatively impacting upon any children.
Another relatively common misconception is that relying upon adultery will secure a greater financial settlement – it won’t. The basis of your petition very rarely has any bearing upon the way in which finances are dealt with.
If you are adamant that you wish to rely upon adultery to prove the irretrievable breakdown in the relationship, please also bear in mind that you will not be able to rely upon any adultery if you have continued to live with your spouse for a period (or periods added together) which exceed six months from you learning of the adultery until the issue of the petition by the court.
When contemplating or dealing with divorce or dissolution proceedings, input from an experienced solicitor can make all the difference. They can help you to decide upon the best way forward, taking into account your exact circumstances.
To arrange an initial free of charge appointment with one of our experts, please call 0113 284 5117 today.