Cristina Court

Associate

Family and Matrimonial


Divorce The Law

Cristina Court

DIVORCE: THE LAW

The law governing divorce in England and Wales is set out in the Matrimonial Causes Act 1973. There is only one ground for divorce in English Law and that is that the marriage has irretrievably broken down.

Firstly, you need to have been married for at least one year before you can file for a divorce.

Secondly, you will need to establish that the Court in England and Wales has jurisdiction in order to progress your divorce. For the English Courts to progress your divorce, you must be able to confirm one of the following:

  1.  Both you and your estranged spouse live in England and Wales or;

  2. You last lived together in England and Wales and one of you continues to live there or;

  3. The spouse who wants to file for divorce has lived in England and Wales for one year before the divorce petition is filed, or if that person was born in England and Wales, that they have lived there for 6 months before the divorce petition is filed or;

  4. That you and your estranged spouse were both born in England and Wales.

We refer to the parties in the divorce as the Petitioner (the person who has started the divorce proceedings) and the Respondent (the person receiving the Divorce Petition). 

In order to prove that the marriage has broken down and obtain a divorce, it is necessary to rely on one of five facts.

The Facts are:

(a)       Adultery

The other party has had sexual intercourse with a person of the opposite sex.  If the husband and wife have continued to live together for more than 6 months after the act of adultery was disclosed or discovered, then adultery can no longer be relied upon as a fact for the divorce. The Petitioner must also find it intolerable to live with the Respondent. You will be expected to detail when the adultery took place and obtain an admission of the adultery from your husband or wife. If they will not admit to the adultery, then you will either have to prove this or we will need to consider other options available to you.

(b)       Unreasonable Behaviour

The Respondent has behaved in such a way that the Petitioner cannot reasonably be expected to live with him/her. The test of unreasonableness is a subjective one. The behaviour complained of in the Divorce Petition does not necessarily have to be of a serious nature, it will depend upon how it has affected the Petitioner. It is often best to try to agree the allegations of unreasonable behaviour before the divorce petition is filed with the Court. In practice, alleged unreasonable behaviour is the most relied upon fact.

(c)        Desertion

The Respondent must have left the Petitioner without his or her consent and for a continuous period of at least two years in the last two and a half years for desertion to be relied upon. In practice, desertion is a rarely used fact for divorce proceedings as alternative facts are usually available.

(d)       Two Years Separation With Consent

This can be relied upon when the parties have lived separately for a continuous period of at least two years immediately prior to starting the divorce proceedings. It is possible to be separated if you are living under the same roof if you have been living completely separately and apart within the home.  Periods of reconciliation of less than six months will not count towards the period of separation, but will not prevent you from relying on two years separation as a fact for divorce, provided you have been separated for over two years in total. The Respondent must consent to the divorce for it to be granted on this basis. The Respondent does not have to give a reason for opposing the divorce and can withdraw his consent even after the Petition has been issued.  It is important to ensure that both parties consent before embarking on a divorce on this basis and you should try to agree the date of separation. 

(e)       Five Years Separation

Where a couple has lived apart for a continuous period of at least five years immediately preceding the Divorce Petition then the divorce can take place without the Respondent’s consent. Only in the case of extreme financial difficulty can the Respondent delay the conclusion of the divorce if this fact is relied upon.  

The legal process shouldn't seem daunting, contact our Family Law department to help guide you through. 

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