In order to become divorced in England and Wales, a party must demonstrate to the court that their marriage has irretrievably broken down. This is demonstrated by evidencing the breakdown by one of five facts to the court, with the most common being their spouse’s unreasonable behaviour.
There does not have to be a direct link between the fact claimed and the breakdown of the marriage: the fact claimed merely evidences the breakdown of the marriage. Once the fact is established to the court, a presumption of irretrievable breakdown is raised. In an undefended case (which accounts for almost all divorces), the court accepts the statement made in the petition that the marriage has irretrievably broken down.
Unreasonable behaviour and adultery are the only two facts that entitle the petitioner to start divorce proceedings immediately (provided the parties have been married at least one year). The other three facts require the petitioner to wait a period of two or five years before starting divorce proceedings. Therefore, when an individual is eager to begin divorce proceedings as soon as possible and cannot rely on the fact of adultery, due to there being no adultery or because there is not enough evidence to establish adultery, their spouse’s unreasonable behaviour is generally used as the fact leading to the irretrievable breakdown of the marriage.
To establish the unreasonable behaviour of their spouse, the petitioner must prove that the respondent behaved in such a way that they cannot reasonably be expected to live with the respondent. It is both a subjective and objective test. Essentially, the question before the court is whether this respondent has behaved in such a way that this petitioner cannot reasonably be expected to live with them. The court will consider all the circumstances of the marriage, the characteristics, personalities and behaviours of the parties before reaching their decision.
In practice, the allegations of behaviour do not have to be serious and Resolution practitioners frequently encourage submitting particulars of behaviour that look to minimise acrimony between the parties. The Law Society’s Family Law Protocol suggests that divorce petitions should only include brief particulars of behaviour, which are sufficient to satisfy the court and should not include any reference to the children of the family. It is good practice to agree the particulars of behaviour with the respondent’s solicitor before filing the petition at court. This allows the respondent time to review the particulars and suggest amendment of any particulars he finds particularly offensive. This approach is endorsed by the Family Law Protocol and the Resolution Code of Practice.
Serving Bedford, Northampton and Milton Keynes, our lawyers can help you with your family law and divorce matters. If you want to discuss your divorce with one of our specialist solicitors, contact us on 01234 889777 to take advantage of our free initial consultation service.