How can I get divorced?

25 February, 2015
by: Cripps Pemberton Greenish

You may not know that you need to be married for at least one year and be habitually resident in England and Wales to get divorced. If you are not habitually resident in England and Wales then both you and your spouse will need to be domiciled here.

There is only one ground for divorce known as the irretrievable breakdown of the marriage, which has to be proved by one of five grounds (see below).

To start the divorce process you will need to file a petition at court citing one of the five grounds. There is a court fee of £410 to pay (January 2015).

The court will issue your petition to your spouse who must then complete the acknowledgement of service within a specified timeframe. If your spouse does not defend your petition you can apply for a decree nisi. A decree nisi is a document that says the court does not see any reason why you cannot divorce.

A judge will consider your divorce petition. If the judge agrees with your petition a certificate of entitlement to a decree and a decree nisi will be sent to you. This is the first of two decrees. It is at this stage that the court can approve any financial agreement reached between the parties.

Six weeks and one day after the decree nisi has been issued, you can apply for decree absolute. This is the final decree, and legally ends your marriage.

The above is based on a typical undefended divorce. There can be complications if, for example, your spouse doesn’t return the acknowledgement of service, or decides that they wish to petition against you.

How do I prove my marriage has irretrievably broken down?

To obtain a divorce you must show the court that the marriage has ‘irretrievably broken down’. To do this you must prove one of the following five specific circumstances exist:

  • Adultery
  • Unreasonable behaviour,
  • Two year separation,
  • Five years separation,
  • Two year desertion.

What is adultery?

Adultery is an act of sexual intercourse with someone else of the opposite sex. You can commence divorce proceedings immediately on this basis.

You cannot rely on an act of adultery as a ground for divorce if you have lived with your spouse for six months after you have found out about it.

What is unreasonable behaviour?

Unreasonable behaviour is where you consider your spouse or partner has behaved in such a way that you cannot reasonably be expected to continue to live with him or her. You can commence divorce proceedings immediately on this basis.

The test for what is or is not unreasonable is subjective meaning the court will consider what is unreasonable to you personally. The behaviour need not consist of extreme behaviour. Instead a combination of less obvious unreasonable behaviour can be sufficient.

What is separation?

You are treated as being separated when you live apart from your spouse. Even if spouses live in the same household, they can be living apart if they are leading completely separate lives. You can use separation as a ground for divorce if you have lived apart from your spouse for:

  • more than two years with your spouse’s consent; or 
  • if you have lived apart for more than five years you generally do not need your spouse’s agreement.

What is desertion?

Desertion means that your spouse or civil partner has left you without your agreement and without good reason. To rely on this fact you need to establish the following:

  • You no longer live with your spouse or partner and the desertion has been for a continuous period of 2 years immediately preceding the date the petition is filed at court.
  • You did not consent to the separation.
  • Your spouse or partner intends to permanently stop living with you.
  • There was no reasonable cause for your spouse or partner to stop living you.

Desertion is rarely used as it is not easy to prove and often another fact can be used in its place.