What is Divorce?

The following guide summarises the current process for filing for divorce in England and Wales.

Divorce defined

Divorce is the formal process by which a marriage is officially brought to an end by the court.

The party to the marriage who files for divorce is known as the petitioner, while the respondent is the individual petitioned against and therefore responding to those proceedings.

By filing a petition to terminate the marriage, the petitioner is asking the court to dissolve the bonds of matrimony, together with all legal duties and responsibilities that marriage entails.

The court, however, must first be satisfied that there are grounds for divorce.

Grounds for divorce

Under section 1(1) of the Matrimonial Causes Act 1973, it is necessary to prove to the court that a marriage has broken down irretrievably and to the point where it cannot be saved.

A petitioner cannot simply state that their marriage has failed, rather they must establish and evidence to the court irretrievable breakdown through one of the five facts:

Adultery

Pursuant to section 1(2)(a) of the 1973 Act, the court must be satisfied that the respondent has committed adultery and that the petitioner finds it intolerable to live with the respondent.

The law only recognises the act of adultery as sexual intercourse between the respondent and a person of the opposite sex.

Further, a petitioner cannot seek a divorce on the grounds of their own adultery.

In determining whether the petitioner finds it ‘intolerable’ to live with their former partner, the court will disregard any period where the parties continue to live together for

a period of less than 6 months once the adultery has been discovered.

The petitioner cannot, however, rely on an allegation of adultery if the parties live together for more than 6 months, or a combined period exceeding 6 months.

Unreasonable behaviour

Pursuant to section 1(2)(b) of the 1973 Act, the court must be satisfied that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent.

Unreasonable behaviour could include physical violence, verbal abuse such as insults or threats of violence, alcohol or substance abuse, as well as financial irresponsibility such as spending excessively or refusing to contribute to the household finances.

In determining whether the petitioner cannot reasonably be expected to live with the respondent, the court will disregard any period where the parties continue to live together for a period, or combined period, of less than 6 months, following the occurrence of the final incident of unreasonable behaviour relied upon by the petitioner.

Desertion

Pursuant to section 1(2)(c) of the 1973 Act, the court must be satisfied that the respondent has deserted the petitioner for a continuous period of at least 2 years immediately preceding the presentation of the petition.

Desertion requires the petitioner to prove that his/her spouse has left them with the intent of ending the relationship, without their consent, for a period of at least 2 years.

In determining whether the period for which the respondent has deserted the petitioner has been continuous, the court will disregard any period where the parties resumed living together for a period, or combined period, of less than 6 months.

That said, no period during which the parties lived with each other will count as part of the period of desertion.

2 year separation with consent

Pursuant to section 1(2)(d) of the 1973 Act, the court must be satisfied that the parties to the marriage have lived apart for a continuous period of at least 2 years immediately preceding the presentation of the petition, and the respondent consents to a decree being granted.

In determining whether the period for which the parties to a marriage have lived apart has

been continuous, the court will disregard any period where the parties continue to live together for a period, or combined period, of less than 6 months.

That said, no period during which the parties lived with each other will count as part of the period for which the parties to the marriage lived apart.

For the purposes of section 1(2)(d), a husband and wife shall be treated as living apart unless they are living with each other in the same household. Accordingly, a couple can be separated whilst living under the same roof, so long as they are not living together as man and wife.

5 year separation

Pursuant to section 1(2)(e) of the 1973 Act, the court must be satisfied that the parties to the marriage have lived apart for a continuous period of at least 5 years immediately preceding the presentation of the petition.

Whilst consent is no longer needed to divorce after a 5 year separation, the same rules relating to what counts as a ‘continuous period’ and ‘living apart’ set out above (for a 2 year separation period) apply equally here.

The only basis upon which a respondent can object to petition based on a 5 year separation, is that the divorce will cause grave financial or other hardship, and in all the circumstances it would be wrong to dissolve the marriage. However, the hardship must result from the dissolution of the marriage itself and not just from the breakdown.

Filing for divorce

When filing for divorce the petitioner must cite and evidence within the petition one of the five facts set out above to demonstrate irretrievable breakdown of the marriage. Once the petition has been issued and served by the court, the respondent will be required to acknowledge receipt and to confirm whether or not they object.

In the event that no objection is raised, the petitioner can apply for a decree nisi. The decree nisi is confirmation from the court that the petitioner is entitled to a divorce. It will not, in itself, end the marriage.

The petitioner will be required to wait 6 weeks plus one day from the date of the decree nisi before they can apply for the decree absolute.

If the petitioner does not make the application for their decree nisi to be made absolute, the respondent can do so, although s/he will be required to wait another 3 months after the time when the petitioner could have applied.

In the event that the respondent does not agree to the divorce, the petitioner can still apply for a decree nisi, although the parties will be required to attend a hearing for the court to make a determination on the facts.

Before granting a decree of divorce the court is under a duty to inquire, so far as it reasonably can, into the facts alleged by both the petitioner and respondent.

On the grant of the decree absolute the divorce becomes final. Accordingly, the marriage has been legally dissolved and the parties are free to remarry.

Why take legal advice?

While the legal process of officially bringing a marriage to an end can in itself be relatively straightforward, disagreements and disputes between a former couple can become complicated and delay the eventual divorce being finalised. Take legal advice to help guide you through the legal requirements and ensure your rights are enforced during what will be a challenging and highly emotional process.

Legal disclaimer

The matters contained in this article are intended to be for general information purposes only. This article does not constitute legal advice, nor is it a complete or authoritative statement of the law, and should not be treated as such. Whilst every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its accuracy and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should be sought.