Getting divorced is not as easy as some people think. You have to show that your marriage has broken down irretrievably. That breakdown must be based on one of five “facts”
And there are lots of rules..
There is the one year rule. You must wait for at least 1 year from the date of your marriage before you can apply to the court for a divorce.
There is also the 6 month rule. You must separate within 6 months of the date of any adultery or the date of any unreasonable behaviour you have put down on your divorce petition otherwise the assumption will be that you have forgiven your spouse for cheating on you or for behaving badly!
As far as Adultery is concerned, you must show the following:
Your spouse has committed adultery.
You find it intolerable to live with him or her.
You can’t take divorce proceedings based on your own adultery!
Adultery is voluntary sexual intercourse between a man and a woman who are not married to each other but one or both of whom is or are married
You must show that your spouse has behaved in such a way that you cannot reasonably be expected to live with him or her.
Make sure you set out in your divorce petition 5 or 6 reasons why your spouse has behaved unreasonably.
Just because he or she refuses to have sex with you may not be a sufficient reason on its own to get your divorce!
And don’t mix unreasonable behaviour and adultery. For a divorce your spouse must be an adulterer or he must have behaved unreasonably. He cannot be guilty of both!
Examples of Unreasonable Behaviour:
- Verbal abuse (insults, constant criticisms, threats, nagging) or physical violence.
- Lack of emotional or financial support – being mean with money!
- Demanding sexual intercourse too often or a complete lack of interest in sex.
- Failure to help around the house or to help with the children.
- Constantly prioritising relationships with other people (friends, family) over your marriage.
- Constantly prioritising work or hobbies over your marriage.
- Lack of affection and frequently going out or socialising without you
- Drinking excessively or taking drugs.
- Behaving inappropriately with other men or women (ie an improper association)
- Moving out of the family home
You must show that you have lived apart for a continuous period of at least two years immediately before the divorce petition is submitted to the court.
You must also show that your spouse consents to the divorce.
You must be living “separate and apart”. This usually means that you are not both living under the same roof.
However if you are still living under the same roof you can still get divorced on this ground if you can show that you were both living as separate households ie not sharing a bed, not sharing meal times, not sharing household tasks such as washing and ironing and not sharing bills.
The court will ask you about the living arrangements if you are both living under the same roof!
You must show that your spouse deserted you for a continuous period of at least two years immediately before submitting your divorce petition to the court.
You must show that your spouse intended to desert you and you did not agree to the enforced separation. You must also show that there was no good reason for your spouse to leave you! It can be quite difficult to show your spouse deserted you. This ground is not used very often in divorce proceedings and usually there is an alternative ground that is more suitable for you to use in your divorce petition.
You must have lived separate and apart from your spouse continuously for at least 5 years. For a 5 year separation you do not need the permission of your spouse to get divorced. However your spouse can defend the divorce on the grounds that he or she would suffer “grave financial hardship”.
Usually you will have lived in separate homes but like in separation for 2 years you can live under the same roof and still be “separated” if you both have separate households.
Some legal stuff:
A note on “previous proceedings” and “jurisdiction”
- In your divorce petition you will have to tick a box to confirm that there have been “no previous proceedings” ie you have not taken divorce proceedings against your current spouse before.
- You will also have to tick a box to confirm that the court has “jurisdiction” ie the legal authority to deal with your case.
- The rules on jurisdiction are complicated! However if you have always lived in England (or Wales) or you have lived in England for many years and this is your home then you don’t need to know the rules. You can just tick the box that asks you to confirm that you are “habitually resident” in England and Wales.
A marriage can be “voidable” because your spouse is incapable of consummating your marriage or wilfully refuses to do so. In practice this means that you don’t have to wait a year in order to get divorced. You can apply for an annulment of your marriage instead. If your marriage is annulled legally you are treated as if you have never been married.
You cannot apply for an annulment if you wilfully refuse to have sex with your spouse! It has to be your spouse who wilfully refuses to have sex with you.
- Of adverts offering you a quick or cheap divorce.
- All divorces must be processed through a court that deals with divorces. There is no “fast track” procedure.
- Cheap divorce adverts generally omit to tell you that in addition to the fees charged by the advertiser you will also have to pay a court fee. Unless you are on a very modest income (in which case you can claim a fee exemption) the court fee currently payable is £550. Most of these advertisers are charging you for the use of their divorce forms but you can get the divorce forms and guidance notes for free!
- You can download them from the following government website:
The above information was given in a very entertaining talk by Saika Alam who is an expert in family law and divorce.
Saika Alam, Family Law Partner Huggins & Lewis Foskett
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