September tends to be a busy month for us, with lots of people making initial enquiries about obtaining legal advice in relation to their family circumstances. The press always make much of January being “divorce month”, often even specifying which day (“divorce day”) apparently sees the most new enquiries of family lawyers as people put their New Year resolutions about family life into practice. Sometimes we notice a similar effect in September – perhaps as a nation we now see the new school year as a time of new beginnings as well. Whatever time of the year you’re reading this, if the possibility of divorce is rearing its head either for you or for a friend, we hope that some more information about the process will be helpful. At CFLP, our ethos is that the more information you understand about what’s going on, the more in control of the process you’ll feel, which can help relieve some of the trauma.
The first question most people ask us when they come to see us is what grounds they might have for divorce. In law, there is actually only one ground for divorce or dissolution, namely that the marriage or partnership has irretrievably broken down. The confusion comes from the legal need to prove this irretrievable breakdown by reference to a “fact” – one of five reasons for the irretrievable breakdown (4 if you are a same-gender couple). These are
- Adultery. This technically needs to be the cause of the breakdown of the marriage; rather than something which happened after you separated. Adultery refers only to sexual intercourse between a consenting man and woman, one or both of whom are already married to other people. Other forms of intimate activity are not sufficient to prove adultery. It is not available as a fact to prove breakdown of a civil partnership, nor a same sex marriage. In terms of proof of adultery, this is usually supplied by the alleged adulterous spouse signing a court form to confirm it is admitted.
- The unreasonable behaviour of one party. This is the most common basis for a ‘quickie’ divorce, but unfortunately a divorce petition based on behaviour requires several “particulars” or instances to be included, which can have the effect of seeming to put the blame for the end of the relationship squarely onto one party when circumstances may be more complex than that. We are often asked what amounts to unreasonable behaviour. It is subjective, and the bar tends to be set quite low. The courts usually take a realistic attitude, realising that if one party feels strongly enough to issue a divorce petition, the marriage has irretrievably broken down and it would be futile to pretend otherwise. However, the courts of course need to adhere to the law. It is unfortunate that couples are forced to allege bad behaviour when in many cases they have just very sadly drifted apart.
- Desertion. This is rarely used, as it involves one party having intentionally deserted the other for a period of at least two years. It can only be used if one spouse suddenly walks out, announces they are leaving the other, and does not return. Ususally, another fact is available instead.
- Two years’ separation with consent of both parties. This is more commonly used than desertion and is a less offensive way to divorce as nobody needs to make allegations against anybody else. However, if you do not want to wait for two years from separation, or are not certain that consent will be unconditionally forthcoming from your spouse then you should take legal advice about whether it is better to proceed using another fact to support an earlier divorce.
- Five years separation. If a marriage has broken down and the parties have lived apart for a continuous period of five years then either party may petition for divorce regardless of whether the other party consents or not. Only very exceptional circumstances will stop one party from divorcing another after five years’ separation, but it is very unusual to wait this long.
The majority of divorces proceed on the basis of either adultery or unreasonable behaviour, as many couples do not want to wait two years to start proceedings, even if it’s possible to arrange a separation agreement to regulate matters in the meantime.
The legal system as is stands forces most couples who want to divorce to make allegations of fault and blame against one of them, which can make a distressing process even harder. The legal reasons for the breakdown of the marriage or partnership generally have no bearing on the financial settlement or arrangements for children, which are much more important in terms of the effect on human lives and social policy, and which can be made much more difficult by having to make allegations during the divorce process. We strongly feel this fault-based system should be changed to no-fault divorce/dissolution, which is something for which Resolution have been campaigning for some time.
The government sadly has no real appetite for sorting out divorce law, which has remained largely the same for 40 years despite all the huge social changes during that period. Presumably it is afraid of the likely backlash from certain sectors of the press and public. However, the President of the Family Division has now put his weight behind the campaign so maybe, just maybe, something will happen to make it easier for separating couples.
In the meantime, if you would like to talk to us about separation, divorce or any other aspect of family law, please give us a ring on 01223 443333 to make an appointment to see Gail, Sue, Simon or Adam.