There is often a perception amongst Americans that the British are a reserved lot; that we’re polite and resolve any problems over a nice cup of tea. This may be the case in some respects, but when it comes to the breakdown of a marriage we still have a fault based divorce and couples are forced to point the finger of blame at their former partner.
There is only one ground for divorce in England and Wales (Scotland has its own set of laws) and that is “the irretrievable breakdown of the marriage.” In short, this means that the parties have no chance of reconciling. If one party believes that this is the case then they can petition for a divorce and the likelihood is the divorce will be granted whether the other party wants it or not. Over here, it takes two to make a marriage, but only one to break it.
Whilst there is only one ground for a divorce, the petitioner must show one of 5 facts as to why their marriage has irretrievably broken down. The facts are as follows:
1.Unreasonable behaviour – in short, the respondent has behaved in such a way that the petitioner finds it intolerable to live with them. This covers a multitude of sins and can range from being reckless with money, to being too tight with the family finances, not going out enough, going out too much etc…
2.Adultery – there is no point issuing a petition citing adultery unless you have a signed confession statement from the respondent; because proving adultery involves a hearing before a judge, is expensive and difficult to prove. Quite simply, you wouldn’t waste your money without a confession, you would just cite Unreasonable Behaviour instead.
3.Desertion – the respondent would have to have deserted the petitioner at least 2 years before a petition was issued. This is not a terribly common petition in England & Wales, as most would cite 1 or 2 above.
4.Two years separation with consent – the nicest way to get divorced and the only way to avoid pointing the finger of blame, is to cite the fact that you have been separated from your spouse for a period in excess of 2 years prior to the issuing of the divorce petition. It is prudent to have the respondent sign a Form of Consent prior to you issuing your petition, because if the other party won’t consent, then don’t bother citing this fact; cite their unreasonable behaviour instead.
5.Five years separation without consent – this would only be done for parties to a marriage who have been separated for at least 5 years prior to the issuing of the petition, so is not a fact we see cited in petitions very often.
There has been talk about having a “no fault” divorce in England and Wales, but nothing has come of it as yet. So in the meantime, the reserved British must put down their cups of tea and point the finger of blame.
Sarah Thompson is a principal family lawyer for Slater and Gordon lawyers
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