Should I Get Divorced
October 2021 | Magdalena Wiktorko
Every situation is different and the choice of whether to go down the divorce route is a personal one. An understanding of how the law of England and Wales deals with divorces as well as the alternative options, will help you make that choice. Sometimes it is easy to feel that divorce is the only route however, considering the alternatives might lead you to a better outcome.
CURRENT LAW ON DIVORCE
The first thing to bear in mind is that the current law on divorce has not changed much for almost 50 years. Therefore, it does not always fit with the circumstances and situations we encounter in modern family settings.
To obtain a divorce, it must be established that the marriage had irretrievably broken down, i.e., that there is no prospect of reconciliation. In order to establish this ground there are five facts that can be relied on:
2. Unreasonable behaviour
3. Desertion for at least two years
4. Separation for at least two years, with the consent of both parties
5. Separation for at least five years – no requirement for the other party to agree to the divorce.
Separation for at least two years (with consent) or at least five years
Unless you have been separated for two years and the other spouse consents to the divorce, or you have been separated for five years or more, there is some ‘fault’ that needs to be attributed to the other spouse.
To proceed on this fact, it must be proven that your spouse has had sexual intercourse with another person of the opposite sex and that you find it intolerable to live with them. However, you cannot rely on adultery committed by your spouse if, after you found out about it, you have lived together for a period exceeding, or periods together exceeding, six months.
Unfortunately, it can often be difficult to prove adultery, and relationships short of sexual intercourse would not be taken into account. If adultery cannot be proven, and the other spouse is not willing to admit to the adultery, the next step would be to consider whether it might be better to rely on the fact of unreasonable behaviour.
To obtain a divorce based on this fact, you must provide examples of the other spouse’s behaviour and show that they have behaved in such a way that you cannot reasonably be expected to live with them. This is currently the most common fact used in England and Wales.
The behaviour does not need to consist of extensive violence, drug or alcohol addiction or other extreme behaviour. Less serious examples such as working too much or showing too little affection can be used with other similar factors.
This fact is very rarely used. To proceed with a divorce based on desertion you must show that your spouse has deserted you for a continuous period of at least two years
In some situations, there might be a clear consensus that the marriage has irretrievably broken down however, in others, it might be more appropriate to explore the possibility of reconciliation. If this is something that you might wish to consider, there are options of counselling or other form of therapy that might assist if you believe you and your spouse might want to ‘give it another go’.
WAITING FOR ‘NO FAULT’ DIVORCE
The law will be changing in April 2022 to introduce so-called “no fault divorce”. Although you can initiate divorce proceedings under the current law if you can establish one of the five facts described earlier, we understand that this might not be the best option for a lot of separating couples. Currently, there is a certain degree of ‘blame game’ which can unnecessarily increase conflict rather than support a separation that is best for the couple and any children.
This ‘blame game’ is rarely helpful as the fact relied upon in the divorce petition is unlikely to influence any other proceedings. Attributing ‘fault’ to one spouse will rarely be considered when calculating what a financial settlement would be. Therefore, in some situations, having to attribute ‘fault’ to your spouse can put you in a very difficult position, especially if you wish to go through the process as amicably as possible.
Thankfully, the Government has confirmed that the long-awaited Divorce, Dissolution and Separation Act 2020, which introduces ‘no-fault’ divorces in England and Wales, will be implemented in April 2022.
The new law will introduce a system where instead of having to prove one of the five facts, ‘irretrievable breakdown’ will be the sole basis for obtaining a divorce. The process will be simplified so that either spouse will be able to divorce by providing a statement saying that the marriage has irretrievably broken down without having to rely on consent or some sort of fault by the other spouse. There will also be the option to submit the statement jointly.
However, for those contemplating waiting until the ‘no fault’ divorce kicks in, it might be useful to know that this has now been postponed from Autumn 2021 to April 2022, and there is always a possibility that it will be postponed again (although we are keeping our fingers crossed!).
JUDICIAL SEPARATION – AN ALTERNATIVE TO DIVORCE
We understand that there might be situations where neither divorce nor reconciliation would be appropriate for a separating couple. In such instance, you might wish to consider obtaining a decree of judicial separation. The main reason people choose judicial separation over divorce is for religious reasons however, if there are any other reasons for not wanting a divorce this might also be a good option to consider. This involves a court procedure which is virtually identical to that which applies to a divorce. The essential difference is that the court pronounces a decree of judicial separation rather than a divorce and therefore you and your spouse would remain married. However, you will be entitled to the same range of financial orders that you could get on a divorce (save for an order providing for one party to receive a share of the other’s pensions which is not available upon judicial separation), which means that you can sort out the money side as part of the separation. You can also get orders in relation to the children.
DIVORCE AND RESOLVING THE FAMILY FINANCES
It should also be noted that when we discuss divorce as above, we only refer to the process of obtaining the Decree Absolute, which is the final document confirming that the marriage had ended. When considering if divorce proceedings should be issued, it should also be kept in mind that in most cases, separation will also involve resolving the family finances and/or child arrangements.
The Decree Absolute (document of divorce) does not sever the financial ties arising out of marriage, and it would remain open for either of the spouses to make a financial claim upon the other in the future, provided they have not remarried. It would be a good idea to obtain legal advice with regards to a court order dismissing rights to make future claims against each other. This is often referred to as a ‘clean break’ and is something that couples are urged to consider.
Separation can be a daunting process however, exploring your options and seeking expert family law advice can help you feel guided and supported throughout.
How to get in touch