We still have a fault based divorce system in this country. This does not mean that divorcing spouses must hire private investigators and submit video footage definitively proving infidelity to a court in order to secure a divorce. It does mean though that some evidence needs to be put before the court to demonstrate that there are grounds for divorce: an irretrievable breakdown in the relationship.
If a couple are agreed that they wish to divorce and are prepared to wait, then this can be done by mutual consent after two years of separation, or without mutual consent after five years of separation. It is not possible to divorce by mutual consent before this two year period. Even if both spouses wish to divorce during the first two years of separation then one of them must rely on fault based grounds to divorce the other spouse.
The divorce petition provides a tick box next to the phrase: “I apply for a divorce on the basis that the marriage has broken down irretrievably”. It continues “I rely on the following fact(s) in support of my application”. The Petitioner, the person applying for the divorce, must select option 1, adultery, or option 2, unreasonable behaviour, to divorce during the first two years of separation.
Update: we published a new blog about unreasonable behaviour grounds in 2018.
These facts are:
1. The Respondent has committed adultery and the Petitioner finds it intolerable to live with the Respondent
2. The Respondent has behaved in such a way that the Petitioner cannot reasonably be expected to live with the Respondent.
By selecting option 1 or 2, the Petitioner must list examples of the unreasonable behaviour of the other spouse, or details of where and when their spouse committed adultery in the last six months with a member of the opposite sex.
Earlier this year, Sir James Munby, the top family judge in this country, told journalists that to remove the element of fault from divorce would bring “intellectual honesty” to the system. This is currently lacking from the system because divorcing couples who wish to divorce and need to use a fault based fact are encouraged to agree on the examples of unreasonable behaviour grounds in advance of issuing the document at the court. This reduces the likelihood of the document increasing tensions at the start of the divorce process. There may need to be conversations about whether there is enough fault in the document to ensure that it will be approved by a judge. It is not sufficient for the behaviour to be simply that the couple do not wish to be married to each other any more: it must be a specific fault on the part of one spouse, albeit that this may be considered mild or trivial to the external observer.
It is all too easy for family lawyers to become numbed to the impact of someone being told by a judge of the court that they have behaved in such a way that their spouse cannot be expected to live with them any more. It is also unhelpful for a couple to have to decide who will be the Petitioner, and what reasons should be included to demonstrate just the right level of unreasonableness. This would be time better spent resolving the financial division or organising the children’s time in two households.
Quote from Sir James Munby 29 April 2014
“Finally, divorce. Has the time not come to legislate to remove all concepts of fault as a basis for divorce and to leave irretrievable breakdown as the sole ground? Has the time not come to uncouple the process of divorce from the process of adjudicating claims for financial relief following divorce, just as we have finally uncoupled the process of divorce from the process of adjudicating disputes about the children following divorce? Indeed, may the time not come when we should at least consider whether the process of divorce still needs to be subject to judicial supervision?”
Grounds for divorce by Christo Drummkopf
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