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.
Sarah Holbrook, family solicitor with Viewpoint Hill & Abbott Solicitors in Chelmsford 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.
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 adultery 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 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 behaviour 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 Owens v Owens decided by the Supreme Court in July 2018, where Mrs Owens application for a divorce on the grounds of her husband’s unreasonable behaviour was refused because the following 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 a lawyer 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.
The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. The law may have changed since this article was published. Readers should not act on the basis of the information included and should take appropriate professional advice upon their own particular circumstances.
If you require advice on your divorce, or any other family law matter please contact Sarah Holbrook in the Family team on 01245 258 892 or email firstname.lastname@example.org.
Sarah Holbrook, Family Solicitor is available to provide you with FREE initial advice.
Call Sarah on: 01245 258 892
Email Sarah at: email@example.com