What is the most relied upon basis for a divorce?
Our Family Law Trainee Solicitor, Shad Mpande explains…
Contrary to popular belief, there is actually only one ground for divorce – that the marriage has broken down irretrievably and as the current law stands, the court requires the Petitioner to satisfy one of the following five facts : –
- Adultery and Intolerability – that the Respondent has committed adultery and the Petitioner finds it intolerable to live with the Respondent.
- Unreasonable Behaviour – that the Respondent has behaved in such a way that the Petitioner cannot reasonably be expected to live with the Respondent.
- Desertion – that the Respondent has deserted the Petitioner for a continuous period of at least two years immediately preceding the application for a divorce petition.
- Two Years Separation and Consent – the parties to the marriage have lived apart for a continuous period of at least two years immediately preceding the application for a divorce petition, and the Respondent consents to the divorce.
- Five years separation – that the parties to the marriage have lived apart for a continuous period of at least five years immediately preceding the application for a divorce petition.
Unreasonable Behaviour has been the most relied upon fact for both opposite-sex couples and same sex couples. Over 51% of wives and 35% of husbands have petitioned upon this ground.
Actions of Unreasonable Behaviour can include, but are not limited to: –
- Physical Violence
- Verbal Abuse, for example insults or threats
- Drug and alcohol abuse
- Refusing to assist with living expenses
- An unwillingness to socialise
- Or refusal to communicate
We have even had playing with the Xbox too much cited in one of our divorce petitions!
The acts of unreasonable behaviour can therefore be very subjective and the fact that two people no longer love each other is irrelevant and irreconcilable differences does not enable a couple to divorce in England and Wales.
Unreasonable behaviour however can only be relied upon by many Petitioners where they cannot obtain a divorce because they have not been separated for 2 years or over and cannot procure any other reason.
Other examples of unreasonable behaviour being used may be when the Respondent has committed adultery but will not admit to it and the Petitioner has no proof.
The “No Fault” divorce bill has now gained more traction in Parliament and will be considered again this month. We are hopeful that the bill will be passed to enable couples to divorce each other without using unreasonable behaviour if they can or wish to avoid it.
It will then be interesting to assess at that point whether the no fault divorce takes over unreasonable behaviour as the most common basis for divorce.
 Office for National Statistics (2019) Divorces in England and Wales: 2018, Available at: https://www.ons.gov.uk/peoplepopulationandcommunity/birthsdeathsandmarriages/divorce/bulletins/divorcesinenglandandwales/2018 (Accessed: 02/01/2020).