diyLAW are grateful to Whitney Akinnayajo, an LLB student at Arden University, for her article in support of public legal education. This is for general information purposes and should not be relied upon as legal advice because it does not consider or take into account your own personal circumstances. If in doubt, seek legal advice.
Life can present a range of unpredictable and unexpected circumstances. Sometimes couples grow apart and over time feelings between spouses change. If you have come to the realisation that your marriage has broken down beyond repair and are considering getting a divorce, this article may be helpful in providing you with the information and tools that will enhance your knowledge regarding this process.
This article will look briefly at the divorce process as well as the legal grounds for divorce, with a particular focus on the ‘behaviour’ ground. This is by far the most common ground for divorce in England and Wales, but can also be the most unclear, thus it is the hope that this article will provide a clear understanding as to what it entails.
Please find some keywords surrounding this topic accompanied by their definitions at the close of this article.
How to get a divorce
In England or Wales, you are entitled to get a divorce if you’ve been married at least a year and your relationship has permanently broken down. However, your marriage must be legally recognised in the UK; this is inclusive same-sex marriage. You also need to have permanent residence in England or Wales.
If you need more time before making the permanent decision of getting a divorce, you can get a legal separation so that you can live apart without ending your marriage.
Starting a divorce application
To start your divorce application (formerly known as a divorce petition), you must have your marriage certificate as this needs to be filed in court to start the beginning process. If you have lost your marriage certificate, you can obtain a copy from the General Register Office. https://www.gro.gov.uk/gro/content/
If you were married outside of England and Wales, you will need to get a certified copy of your marriage certificate from the country where you were married.
You can start your divorce application in any divorce County Court. However, it is best to choose a court that is close to where you live because you may need to make several visits to court before the divorce is completed.
To file your divorce petition at court, you will need the following divorce form; which is the official application for a divorce, dissolution or (judicial) separation (D8).
Grounds for divorce
To issue divorce proceedings you must have valid grounds. Under the laws that govern England and Wales, irretrievable breakdown is the only ground for filing a divorce. You can prove that your marriage has irretrievably broken down by establishing that one of 5 things has taken place.
- Adultery- You must prove that your spouse has had sexual intercourse with another person of the opposite sex and that you find it intolerable to live with your spouse. (This ground is not available for same-sex marriages. Instead, extramarital sexual activity in same-sex relationships falls under the behaviour head.)
- Behaviour- You must show that your spouse has behaved in such a way that you cannot reasonably be expected to live with him or her.
- Desertion- This is where your spouse has deserted you for a continuous period of at least 2years.
- 2 years separation with consent- You or your spouse can issue divorce proceedings if you have been separated for at least two years and the other party agrees to the divorce.
- 5 years separation without consent- If you and your spouse have been living apart for at least five years then, either of you may issue divorce proceedings without the other party’s consent.
If one of these 5 things have not occurred, then divorce will not be able to take place.
The ground for divorce that will be focused on in this article is ‘behaviour’; often referred to as ‘unreasonable behaviour’. As stated in the introduction, this is one of the most common grounds for divorce in England and Wales.
Behaviour is used so frequently because;
- Consent from your spouse is not required
- There is no specific time period that you must wait before being able to use this as your reason for divorce
Nonetheless, in saying this, you will still need to have been married for a minimum of 12 months before you are able to file for divorce.
To prove that you have the appropriate grounds for divorce using behaviour, you must show that your spouse has behaved in a way that you cannot reasonably be expected to live with.
But what constitutes behaviour that you cannot reasonably be expected to live with?
There is a special test to apply:
- Would a right-thinking person – this is a person with ordinary moral standards – the average person walking past in the street
- Considering everything about each spouse and the whole marriage
- Think that the other spouse has behaved in such a way that this spouse cannot reasonably be expected to live with her or him
Therefore, when thinking about behaviour, it may be helpful to imagine what the average passer-by would think if they witnessed the behaviour that you have described take place in a public place.
Would the average person think that the behaviour was unacceptable or unreasonable to live with? Would they think it was normal behaviour between spouses? Would they be shocked by the behaviour?
Examples of Behaviour
As stated above, there are varying levels of seriousness to behaviour. Individuals may see some issues as more hurtful to their marriage than others do
Below is a list of allegations which can amount to behaviour which a spouse cannot be reasonably be expected to live with:
- Devoting too much time to a career
- Refusing to get a job
- Relying on you financially
- Financially irresponsible e.g. failure to support the family, household costs
- Having no common interests
- Pursuing a separate social life
- Being antisocial
- Lack of emotional support
- Lack of support in general, around the house, in your career etc
- Refusal to discuss/work on issues within the marriage
- Not wanting to engage in any sexual or physical acts/relations
- Partaking in a sexual activity with another person which falls short of sexual intercourse
- Violence / Physical abuse (e.g. hitting, scratching, punching, biting, strangling or kicking)
- Verbal abuse (e.g. name calling, insults, threats, manipulation, bigotry)
- Gambling on a frequent basis and/or creating debt without your knowledge
- Drug/alcohol abuse
Some of these allegations may not be considered serious by themselves in combination with other allegations would be behaviour which a spouse cannot reasonably be expected to live with.
In your statement for divorce and behaviour, it is advised that you do not just list the examples as this will not be enough for the court to decide whether your divorce should be allowed. Instead, try to write about how this behaviour has made you feel. This will help to communicate the reality of your situation to the court.
Roughly 5 detailed examples should be sufficient.
Below are a few examples of statements that you could write when filing a divorce for behaviour:
- “My spouse has chosen to spend money on gambling excessively and has not made any contributions to the household. This has caused me to feel…”
- “My spouse stopped socialising 2 years ago and rarely leaves the house. This has made me feel…”
- “I have felt a lack of support from my spouse, particularly when he/she became made redundant. As a result, I feel…”
- “My spouse has been emotionally abusive to me, by frequently threatening me and limiting access to our joint bank accounts. Because of this, I feel…”
- “My spouse humiliated me in public in front of several people. This made me feel…”
It is important to understand that when presenting a divorce petition on the grounds of behaviour, there is a specific time limit in place.
If you continue to live with your spouse for more than six months after the last incident of behaviour you will need to have a good reason for continuing to live with your spouse. A good reason could be nowhere to go, no money or you need a stable home for young children. If you can, try to either file your divorce application within six months of the last behaviour incident or show in the petition that the behaviour is still happening. If the behaviour is still happening the six-month time limit will not start.
Allegations can be made in relation to the time when you were living with your spouse or the period after you have parted.
Cooperation/ Reducing acrimony
It is always advisable that spouses try to keep a civil relationship with one another during divorce proceedings where possible. This is because being civil towards each other can help prevent further emotional turmoil as well as speed up the divorce process.
This can be beneficial in helping along divorce proceedings. However, it is understood that in reality this can be understandably difficult and may not be possible or even desirable in certain circumstances (for example domestic or emotional abuse cases).
If it is possible for you to be civil, then sharing the examples of behaviour that you have listed with your former spouse before they receive them through the court is recommended.
If you are on very good terms, you could even ask your former spouse to write the examples of their behaviour themselves to minimise possible conflict. Agreeing on that the contents of the divorce application can prevent misunderstandings and avoid difficulties further along.
Below is a list of keywords/ terms that are widely used by solicitors accompanied by their definitions.
Adultery- Voluntary sexual intercourse between a married person and a person of the opposite sex who is not their spouse.
Allegations- A claim or assertion that someone has done something illegal or wrong, typically one made without proof.
Antisocial- Not sociable or wanting the company of others.
Consent- Permission for something to happen or agreement to do something.
Divorce- The legal dissolution of a marriage by a court or other competent body.
Irretrievable breakdown- Not able to be retrieved or put right.
Marital home- A home in which a married couple live together.
Petitioner/applicant - The person that applies for the divorce.
Respondent- The person against whom a petition/application is filed.
Separation- The state in which a couple remain married but live apart.
Spouse- Either member of a married couple
This blogpost is for information purposes and should not be relied upon as legal advice because it does not consider or take into account your own personal circumstances. If in doubt, seek legal advice.