Your rights in divorce - the facts

If either spouse feels that they cannot continue with their marriage, either the husband or wife can apply to the court in order to have it dissolved. This application is called the Petition and the person who makes it the Petitioner. The other spouse is named as the Respondent.

In order to prove to the court that the marriage has broken down irretrievably, the Petitioner needs to give evidence in writing (in the divorce Petition) of any one of five facts. Subsequently this evidence needs to be accepted by the court.

These facts are:

ADULTERY

This is the case where the Respondent has had sexual intercourse with another person of the opposite sex and it has had such an injurious effect on the relationship that the Petitioner can no longer toleratE living with the adulterous spouse. The adultery must be proven either by means of evidence or an admission from the other spouse.


You cannot invoke this fact if the extra-marital relationship of your spouse did not involve sexual intercourse, or if their sexual relationship was with somebody of the same sex. In either of these cases you may have to fall back on the facts of unreasonable behaviour or two year’s separation, if that applies.

NOTE: If you continue to live with the adulterous partner and let 6 months pass after the date on which you learned of your partner’s adultery, you will no longer be able to use the adultery as grounds for divorce. An exception is where the adultery is continuous or repeated and the 6 month period with start with the date or finding out about the last act of adultery.

UNREASONABLE BEHAVIOUR

In order to secure a divorce based on the fact of unreasonable behaviour, it must be clearly demonstrated to the court that the actions of the Respondent are sufficiently intolerable that it is unreasonable to expect the Petitioner to live with them.
You will need to give a detailed description of your spouse’s unreasonable behaviour and include this in the petition. Unreasonable behaviour encompasses all sorts of malevolent acts, so it is important to explain clearly all the traits and specific events which have made your spouse impossible to live with to have the best chance of getting your divorce granted.

Doctor’s certificates may help to support your case if the behaviour has had a damaging effect on your health.
Medical reasons for the unreasonable behaviour should not preclude the acceptance of unreasonable behaviour as a valid fact upon which to sanction a divorce.

If using this fact it is important to act quickly, as long periods of cohabitation after an instance of unreasonable behaviour will weaken your case, especially if in excess of 6 months.

DESERTION

Distinct from separation, desertion is when a spouse parts from their husband or wife without their consent. Several conditions need to be met in order to obtain a divorce on the fact of 2 years of desertion. These are:

  • The Petitioner no longer lives with the Respondent
  • This separation was against the wishes of Petitioner
  • It is the intention of the Respondent to permanently stop living with the Petitioner
  • The Respondent does not have reasonable cause for wishing to stop living with the Petitioner, e.g. unreasonable behaviour.

This is a rare ground for issuing a divorce, as there are many caveats that render it unusable. Therefore it is only really worth considering if none of the other facts apply to you. Examples of such circumstances that preclude the use of this fact include:

  • A decree of judicial separation granted by the court
  • The Respondent made a reasonable offer to resume cohabitation that you unreasonably refused
  • The Respondent has given you a reason to stay away from the home, for example, he/she commits adultery
  • Any attempts to reconcile may mean you have to wait longer before you can apply for divorce on this ground.

2 OR 5 YEARS OF SEPARATION


To be granted a divorce on grounds of separation the Petitioner must prove that they have been living apart from the Respondent for a continuous period of at least 2 years.  You will be deemed to have separated as long as you have lived at different locations for the necessary length of time. In the case of couples who have decided their marriage is at an end but still live in the same house, the court will consider the individual living arrangements of the couple to determine whether they can be classed as separated by law and thus whether a divorce can be issued. Things taken into account are whether certain activities are done together or separately, e.g. sleeping, cleaning, eating and paying bills.

If it can be proven that the separation has lasted for at least 5 years then the divorce can be won without the agreement of the Respondent.  If the duration of the separation is less than 5 years but more than 2 then consent must be obtained from the Respondent.

10 STEPS TO DIVORCE

STEP 1 - Complete a divorce petition and statement of arrangement for children (if applicable)

STEP 2 - The Divorce Petition and Statement of Arrangements for Children, if appropriate, are then to be filed at the Court together with your Marriage Certificate and the appropriate fee.

STEP 3 - The Court will issue the Divorce Petition and send you a copy if it, together with a copy of any Statement of Arrangements for the Children, to your spouse. Your spouse will also be sent a form on which he or she has to acknowledge service of the Divorce Petition and say whether he or she intends to defend (object to) the proceedings.

STEP 4 - Your spouse will complete the Acknowledgement of Service of the Divorce Petition and return it to the Court.

NOTE: If your spouse fails to return the Acknowledgement of Service to the Court, you will either have to instruct the Court Bailiffs to serve the Petition personally or, alternatively, arrange for a process server to serve the Petition.

STEP 5 - Once your spouse has returned the Acknowledgement of Service of the Divorce Petition to the Court indicating that he/she will not be defending the divorce, the Court will send you a copy.

STEP 6 - You then prepare an Affidavit in support of the Petition. This is a sworn statement confirming that the information you have given in the Divorce Petition is true.

STEP 7 - You send the Affidavit to the Court together with a Request for the case to be considered.

STEP 8 - All the paperwork then goes before a Judge to consider whether a divorce should be granted and to consider the arrangements made for any children. S/he will issue a Certificate and the case will be listed for the Decree Nisi.

NOTE: The Decree Nisi is the provisional divorce order. But you will remain married until the Decree Nisi has been made ‘absolute’.

STEP 9 - The hearing for the Decree Nisi will be listed for about 3 to 4 weeks after the Affidavit is returned to the Court, depending on how busy the Court is at the time. At this point, the Court will also indicate if it is satisfied with the arrangements for the children.

NOTE: You do not need to attend the Decree Nisi hearing unless the Court has indicated that you should do so because there is a dispute over who should pay the costs of the divorce.

STEP 10 - Once you have received the Decree Nisi, you must wait for 6 weeks before applying for the Decree Absolute by sending another application form to the Court together with a further Court fee.

NOTE: The Decree Absolute is the final part of the divorce. It is important that you retain the Decree Absolute Certificate as you will need it if you ever wish to prove in the future that you are no longer married.

NOTE: It usually takes about 4 to 5 months to obtain a straightforward divorce – i.e. where the divorce is not defended by your spouse and the facts are clear cut – and, even then, this depends on how quickly each party returns the various forms to the Court and on how busy the Court is.

 

 

Disclaimer

Whilst every effort is made to ensure that the legal information contained on “YouandYourRights” is accurate, it does not constitute legal advice tailored to your individual circumstances. If you act on it, you acknowledge that you do so at your own risk. Neither the Proprietor nor Dean Dunham can assume responsibility and do not accept liability for any damage or loss which may arise as a result of your reliance upon it.

 

 

Last updated: 2 February 2013

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