Am I entitled to a divorce? It depends whether...

...you can prove the irretrievable breakdown of your marriage.

If you have decided to end your marriage by applying for a divorce you may be surprised to learn that there are certain criteria you need to satisfy before your application will be accepted. You may also be surprised to know that, unless you have been separated for two years and your spouse agrees to the divorce, you will either have to prove that they have done something wrong which justifies a divorce being granted immediately or else wait until you have been separated for five years.

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Robert Bellhouse, family law solicitor with Ware & Kay Solicitors in York & Wetherby explains more.

Divorce in England and Wales

To apply for a divorce in England and Wales you will usually have to have a permanent home here and be able to prove that:

  • you have been married for more than one year;
  • your marriage is legally recognised; and
  • your relationship has irretrievably broken down.

To establish irretrievable breakdown, you will need to prove one of the following five facts:

  • your spouse has committed adultery;
  • your spouse's behaviour is unreasonable;
  • your spouse has deserted you;
  • you and your spouse have been separated for two years' and you both agree to a divorce; or
  • you and your spouse have been separated for five years.

These may sound self-explanatory but there are conditions attached to each fact which can make them more difficult to establish than you may first think.

Adultery

For example, you cannot rely on adultery if your spouse has had sexual intercourse with someone of the same sex. This is because in England and Wales adultery can only be committed by members of the opposite sex. Reliance on adulty is also not possible where, following the discovery of an affair, you and your spouse continued to live together as a married couple for at least six months. It is also not possible where it is you, rather than your spouse, who is seeking the divorce and it is you rather than them who had the affair.

Unreasonable behaviour

Unreasonable behavior requires you to prove that your spouse's behaviour during your marriage has been so unreasonable that you cannot be expected to continue to live with them.

Proving unreasonable behaviour is relatively straightforward where there have been incidents of physical violence, verbal abuse, controlling behavior or persistent drunkenness within the marriage. However, it can be more difficult with other types of behaviour you find intolerable.

This is demonstrated by the case of a lady who applied for a divorce on the grounds of her husband's unreasonable behaviour, but which was refused by the court because the examples of behaviour given were not considered unreasonable enough:

  • her husband prioritising his work over their home life;
  • her husband showing her a lack of love, attention and affection;
  • her husband suffering from mood swings which caused regular arguments; and
  • her husband making unpleasant and disparaging remarks about her and her family.

How we can help

Because there may be difficulties in establishing whether the criteria for getting a divorce have been satisfied, it is important to seek legal advice at the outset.

It is also important to remember that at the same time as dealing with your divorce you will also need to decide arrangements for your children and how your finances should be split. This is not something you should do without the benefit of legal advice given the risk that you may agree to something that is not in your best interests. For example, it may be tempting to agree to forego a claim to your spouse's pension in return for a lump sum payment or to agree to a quick sale of the family home in return for a larger share of the sale proceeds. It may be, however, that these promises of a quicker cash settlement are not the best way forward and that it would be preferable to reach some other form of compromise.

Published: September 2018

Contact us

If you require advice on your divorce, or any other family law matter, please contact Robert Bellhouse on 01904 716062 or email robert.bellhouse@warekay.co.uk