It is a question I am asked daily, and often I hear the phrase “irreconcilable differences” which is not actually a term the English Law recognises. There is a ‘ground swell’ of opinion in the Family Law Profession that the law relating to divorce is long overdue an overhaul. The legislation is over 50 years old and was drafted when times were very different and divorce was rare. The view within the profession is that there ought not to be a blame culture in order to obtain a divorce. Changes would make the very painful process of divorce less painful or acrimonious. Irreconcilable differences could perhaps be suitable, or a period of separation – a short period of months not years.
The recent case of Owens v Owens, whereby a Wife petitioned for a divorce on her Husband’s unreasonable behaviour has hit the national headlines; the Husband defended her petition and denied the allegations made against him saying they were not sufficient to cause the marriage to break down. The case proceeded to the higher courts and a judgement today by the Supreme Court has ruled that they must remain married “for the time being”.
This leaves many campaigners still continuing to call for grounds for no fault divorce.
Divorce – The current law
You can only commence divorce proceedings after you have been married for a period of 1 year. There is one ground for divorce, this being the irretrievable breakdown of the marriage. To prove to the Court that the marriage has broken down in this way you must prove one of five facts. These are as follows:
You must show that your spouse has committed adultery with either a named or unnamed person and as a result of this you find it intolerable to continue living with them.
- Unreasonable behaviour
You must show your spouse has behaved in such a way that you cannot reasonably be expected to continue living with your spouse. The legal test for this is a subjective test. In other words, would a right thinking person come to the conclusion that this spouse has behaved in such a way that their spouse cannot reasonably be expected to live with them taking into account the whole of the circumstances and the characters and personalities of the parties.
You must show that not only has your spouse deserted you, but also that the state of desertion has gone on for a continuous period of at least 2 years immediately proceeding the presentation of the petition. You should also note however, that it is rare for this fact to be relied upon as there are evidential problems of proof of intent to deal with. Usually, the circumstances allow for a petition to be issued on other grounds.
- 2 years separation with consent.
You must show that you and your spouse have lived apart for a continuous period of at least 2 years immediately proceeding the presentation of the petition and that your spouse consents to a decree of divorce being granted. Often you will have lived apart in separate houses but it can be that you have lived in the same house but you must have lived as separate households and decided that the marriage had broken down irretrievably before you separated.
- 5 years separation
You must show that you and your spouse have been living apart for a continuous period of at least 5 years immediately proceeding the presentation of the petition. Your spouse does not need to consent to the decree of the divorce being granted although you should have regarded the marriage as over before the separation began. Living apart is determined in the same way in this case, as it is in a divorce based on 2 year separation with consent.
If you and your spouse are considering divorce, whether in the early stages or having been separated for some time, please get in touch with Farleys’ experienced divorce team. We can provide legal expertise with a down to earth approach to ensure your divorce is managed with minimum stress. Call us today on 0845 287 0939 or email us through our online contact form.
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