In films, when a relationship breaks down you often hear the cliché ‘it’s not you, it’s me.’ Unfortunately, many people are surprised to find out that this simply is not enough to start divorce proceedings.
Divorce is based on fault, one party must blame the other for the failure of the marriage, unless the parties wish to wait until they have been separated for two or five years. The Family Law Act 1996 did attempt to introduce a system where it was not necessary to blame the other but the provisions were never implemented and have now been repealed.
The divorce rules are strict, there is only one ground for divorce and that is the irretrievable breakdown of the marriage. There are five facts that prove this ground. Adultery, unreasonable behaviour, desertion, two years’ separation with consent or five years’ separation. The person who starts the divorce needs to choose one of these facts.
Clients are often surprised that they cannot start the divorce based on their own adultery or unreasonable behaviour. According to the ONS divorce statistics 59% of divorcing people assign blame to the other party in the divorce petition, rather than waiting two or five years following separation to divorce.
Often, the divorcing couple have agreed to separate but as a result of divorce laws, they must blame their spouse in the divorce petition. This does not necessarily need to cause confrontation, the fact on which divorce is petitioned on can and often is agreed before the petition is sent to the Court. To avoid conflict, when divorcing on the fact of unreasonable behaviour, divorcing couples are encouraged to agree the behaviour allegations in advance.
Vicki Cole | Trainee Solicitor
Family Department, Kerseys
26 February 2014