Divorce is the legal ending of a marriage granted by the courts because there has been an ‘irretrievable breakdown’ of the marriage. The process is governed largely by the Matrimonial Causes Act 1973. Before a court grants a divorce, it has to be shown that the marriage has broken down permanently. You do that by completing a legal form called ‘a petition’ – hence you are the ‘petitioner’ if you start the divorce and your ex becomes the ‘respondent’.
You prove irretrievable breakdown in the petition by establishing one or more of the following five ‘facts’:
Adultery: You must prove that your partner has had sex with another person of the opposite sex and that you find it intolerable to live with them. Adultery is defined as voluntary sexual intercourse. That other person can be named in the petition as a co-respondent (however it is good practice not to as it adds to the acrimony). Not more than six months must have passed since you became aware of the last act of adultery before the petition is sent to the court unless the adultery is continuing. Proof of adultery is rarely needed – often it is admitted.
Unreasonable behaviour: This is the most commonly cited fact. You have to show that your spouse has behaved in such a way that you cannot reasonably be expected to live with them. Allegations might, for example, include references to excessive drinking or financial extravagance but the court does not insist on severe allegations of unreasonable behaviour in order to grant a divorce. Relatively mild allegations such as having a lack of common pursuits, spending too much time on the golf course or at work, are enough. If this sounds an unnecessarily upsetting way of going about things, there is nothing to stop you sitting down with your ex and agreeing what you are going to write.
Desertion: This is where your spouse has deserted without consent for at least two years. It is almost never cited as it requires the intention to divorce throughout that time.
Two-year separation: You and your ex have been living apart for at least two years, immediately preceding the presentation of the petition and you both agree to a divorce.
Five-year separation: You and your ex have been living apart for at least five years immediately preceding the presentation of the petition. The other spouse need not consent to the divorce.
Couples are often surprised to learn that ‘adultery’ and ‘unreasonable behaviour’ are the two reasons cited in most break-ups. This is because couples generally do not want to have to wait a couple of years before satisfying the other grounds. The law does not allow for divorces in the first year of marriage. In an attempt to take some of the emotional sting out of divorce, a system of ‘no-fault divorce’ was proposed some years ago (in the Family Law Act 1996). It would have effectively abolished the need to prove adultery or unreasonable behaviour. However, the legislation was never introduced into British law. Certainly, the measures proved too controversial. Many politicians and social commentators regarded the proposals as undermining the value of marriage.
In 2010 it was reported that more than three out of four of the top 100 divorce lawyers wanted to scrap our ‘medieval fault-based system’ of divorce.
There is a huge amount to consider on divorce (and it is important you take the proper professional advice). Issues, you might want to consider include the following:
Where? Different countries have very different approaches and so, for example, treat assets on a split very differently. If you or your ex is from another country (or lives abroad), you might want to consider where you divorce. A European law (known as Brussels II) has clarified the bases of divorce in different jurisdictions smoothing the way for mutual recognition and enforcement of decisions within the BII signatory countries. The court in whichever country in the European Union receives the first petition must take precedence over the court in other countries, as long as the petitioner has good grounds for bringing their divorce in that country.
Tax? Separation may create a liability to Capital Gains Tax (CGT) a tax on the increase in value of an asset which becomes payable in the year following disposal of the asset. Although gains on a principal private residence are exempt, and any transfer of the former matrimonial home may not attract CGT provided the owner or owners (whether it was in one party’s sole name or held jointly) lived there throughout the period of ownership.
Immigration status? If you are not a British citizen, or do not have indefinite leave to remain, consider the impact starting divorce proceedings might have on your immigration status.
Loss of widow’s status for pensions and trusts on divorce? As you will never have the chance to become each other’s widow or widower, there will be a significant loss of pension benefits to be considered.
Thanks very much to Punam Denley, a partner at the International Family Law Group LLP for reviewing and to David Hodson, also partner at the International Family Law Group LLP, who reviewed an earlier version which appeared in A Parent’s Guide to the Law by Jon Robins (LawPack , 2009). Stephen Lawson, a litigation partner at Forshaws Davies Ridgway LLP assisted with the section on the CSA.