Under the current law (Matrimonial Causes Act 1973) you must show to the court that your marriage has broken down irretrievably. Our divorce laws are primarily concerned with you having to prove blame and that the breakdown of the marriage is due to the fault of your husband/wife. The proceedings can be lengthy and you can encounter procedural difficulties making the whole process stressful and confrontational.
To prove the breakdown you must prove one of five factors:-
You must show that your husband/wife has been involved in a sexual relationship with a member of the opposite sex. You must blame them for the breakdown of the marriage. Difficulties may occur if your husband/wife will not admit to the adultery. This can cause delay in proceedings and finding evidence to substantiate the allegation may not be possible. It is often best to obtain written confirmation that the adultery is admitted before proceeding with the petition. You are able to name the ‘other person’ in an adultery petition. However, this brings another party into the proceedings and one who will need to admit to the adultery. This can cause potential delays and unnecessary complications and is not required. Also, if you are made aware of the adultery and subsequently continue to live with your husband/wife for six months or more then you cannot issue proceedings based on that adultery.
You must show that your husband/wife has behaved in such an unreasonable manner that you cannot be expected to continue to live with them. You must blame them for the breakdown of the marriage. What is and what is not unreasonable behaviour can be very subjective. However, you must show to the court, in a written statement in your petition, that your husband/wife has behaved in such a way that an ordinary/average/reasonable thinking person would consider the behaviour to be unreasonable.
Unreasonable behaviour can take many forms but the most common include:
Domestic Abuse – physical, verbal, sexual, undermining, threats, possessiveness, control, insults, blame, deprivation.
Social problems – drug taking, alcohol abuse, criminal activities.
Financial concerns – financial irresponsibility, lack of contribution, increasing joint debt, controlling, secretive.
You must show that your husband /wife has left you with the intention of ending the marriage and had no reason to do so. You must blame them for the breakdown of the marriage. Proceedings cannot be issued until two years after your husband/wife deserted you. This reason for divorce is rarely relied upon as it is difficult to prove. It is usually only used in cases of ‘absolute’ desertion i.e. when no trace of your husband/wife can be found.
A two year separation period
Many couples choose to rely on a two year separation period as they do not have to prove any blame against the other person. However, the other person must give their consent, in writing, to the divorce. It is possible to divorce on this basis even if you are living in the same household. However, you must prove that you have lived completely separate and apart within that household. To include not sleeping together or eating together or doing each other’s household chores i.e. washing, ironing, cleaning and shopping.
A five year separation period
This is the same as a two year separation period except that you do not need the written consent of your husband/wife. In fact it is the only way to divorce without agreement or consent.
Is an overhaul of the Divorce Law needed in modern society?
For a number of years there have been suggestions and discussions upon how to move towards ‘no fault’ divorces. The blaming culture of divorce has led to continued conflict, stress and difficulties which have impacted on the participants and their children.
A Government consultation for the reform of the divorce laws took place between September and December 2018 and its outcome is awaited. Generally, the amendment of the law to a ‘no fault’ divorce system will strive to ensure that couples are able to consider the implications and change their minds if need be. To ensure there is support for them and their children and that the process is future focusing. It is hoped that any changes will be implemented in the shorter term and that they will prove to be quicker and less stressful than the existing proceedings. It is thought that only ‘irretrievable breakdown of the marriage’ will need to be shown and contesting the proceedings may not be possible.
The proposed changes in the divorce law will sit well with family mediation. Mediators try to bring couples together to sort out arrangements for their children and their finances with less:
………… and less blame.
Author: Elaine Clarke, Family Mediator, Bedford.
Call us on 01908 231132 or Email: firstname.lastname@example.org for further information or to book a Mediation Information & Assessment Meeting (MIAM) (11 Locations: Milton Keynes, Bedford, Broxbourne, Hemel Hempstead, London, Northampton, Oxford, Potters Bar, St Albans, Harrow and Watford).
Read more about family mediation at: www.focus-mediation.co.uk