What are the grounds for divorce?
There is only one ground for divorce in England and Wales: irretrievable breakdown of marriage. To prove irretrievable breakdown of marriage, one party must demonstrate one or more of the following ‘facts’:
- the other spouse has committed adultery;
- the behaviour of the other spouse has been unreasonable;
- a spouse has deserted the other for a period of two years;
- the spouses have been separated with consent for two years; and/or
- the spouses have been separated without consent for five years.
We have only been married a short time. Can I file for divorce?
In England and Wales you cannot petition for divorce if you have been married less than one year. You must wait until after 365 days have passed to petition for a divorce and you must demonstrate that your partner’s behavior is unreasonable or that they committed adultery, which is hard to prove if your partner denies they had an affair.
We married abroad, but can we divorce in England?
You can still obtain a divorce in England even if you married abroad provided either you or your spouse is habitually resident or domiciled in England or Wales. It does not matter that you married abroad, what matters is that you live as a resident of England for at least one year before you file for divorce.
What if I live in England and Wales and my spouse resides abroad. Can I still obtain a divorce?
Yes, you can still obtain a divorce from your spouse, even if your spouse now lives abroad provided you are either domiciled or habitually resident in England and Wales for one year before you file for divorce.
My spouse committed adultery but I forgave him. I now want to file for divorce. Can I still rely on my partner’s adultery?
You can cite your partner’s adultery as a fact to prove irretrievable breakdown of marriage as long as you became aware of it less than six months ago. If you became aware of the adultery more then six months ago, you are seen to have accepted it, and you can no longer use the fact to seek a divorce unless your partner commits adultery again after this.
Will the separation period start over if my partner and I reconcile, albeit briefly?
If you seek a divorce on the basis of either two or five years separation, you can reconcile for a period or periods totalling less than six months over the two or five year period. However, you must add on the reconciliation period to the end of the two or five year period and you go only start divorce proceedings at the end of that time. If, however, you reconcile for a period or periods totalling six months or more, the two or five year separation period resets – any period or periods of prior separation will essentially be wiped out.
My partner and I are separated but living in the same house, can I still file for divorce?
Yes, you can still file for divorce if you are separated but living in the same home. You must demonstrate that you are not living as husband and wife by showing that you have separate bedrooms, and you are not sharing any domestic tasks such as cooking, washing, and ironing, or going to social events as husband and wife.
What conduct qualifies as ‘unreasonable behaviour’?
There is no exhaustive list as to what qualifies as ‘unreasonable behaviour’. You must show that, objectively, nobody could expect you carry on living with your spouse together because of his or her conduct. A few examples of ‘unreasonable behaviour’ include:
- Continuous name calling.
- Lack of sex.
- Disinterest in you or the family.
- Disrespectful or undermining behaviour.
- Lack of financial support in maintaining the household.
- Violent or abusive behaviour.
I have received the Decree Nisi. Does this mean I am divorced?
No, a Decree Nisi does not mean that you are legally divorced. The court issues the Decree Nisi to stipulate that both parties must wait six weeks and one day before they can file for the Decree Absolute (divorce decree). The court uses this period of time to see if anyone objects to the divorce. If nobody objects, you are free to file for the Decree Absolute. It is only when you obtain the Decree Absolute that you are legally divorced.
What if my partner, the petitioner, does not apply for the Decree Absolute, can I apply?
Yes, as respondent, once the court has issued the Decree Nisi you can apply for the Decree Absolute if your partner fails to do so. However, you must wait four and a half months from the issuance of the Decree Nisi. (NB. The petitioner only has to wait six weeks and one day.)
How long does the divorce process take?
A typical divorce takes between three and six months. However, this depends on how quickly your partner responds to your petition. The divorce may also be delayed if and your partner disagrees about how to divide assets or disputes arrangements for the children. It is best to arrive at an agreement on these matters prior to applying for divorce, if possible.
When can I marry again?
You are free to marry again once the Court has issued the Decree Absolute. Prior to this you cannot remarry.
A solicitor who specialises in matrimonial and family law matters can assist you in complying with court procedures and in negotiating settlements as to financial matters, children and other issues that may arise during divorce or dissolution.