Can you get a divorce?
To get a divorce in the UK, you need to have been married for at least one year. There are no exceptions to this time period. If you’ve been married less than a year, all you can really do is separate until you’ve passed the year mark. To get a divorce after this period has passed, the marriage needs to be legally valid, and, usually, you must be either domiciled, or legally resident, in England for at least one year before applying for your divorce. However, if you are domiciled and habitually resident in England or Wales and have resided here for at least 6 months, you can also apply for a divorce. If you got married abroad, you can still get divorced in England.
For your marriage to be legally valid, you need to be:
- both over 16, or have written parental permission to marry if one or both of you are between the ages of 16 and 18
- free to marry – which means single, legally divorced or legally widowed
- not closely related
- have two witnesses sign the register on the day of your marriage
The same largely applies to civil partnerships. You must have been in the partnership for at least a year before you can apply to have the partnership dissolved.
What are the grounds for divorce or dissolution of a civil partnership?
There is only one ground for divorce or dissolution of a civil partnership and that is irretrievable breakdown of the relationship. This ground needs to be satisfied by proving one of five possible facts. These are:
To get a divorce on the grounds of adultery, you’ll need to prove that your husband or wife has had sex with a member of the opposite sex or he/she will have to admit to the adultery. Simply suspecting that your husband or wife has committed adultery is not enough. The adultery also has to be intolerable to live with.
Adultery can’t be relied upon as reason to dissolve a civil partnership, although you can specify that your partner has been sexually unfaithful under the grounds of unreasonable behaviour.
When can you not use adultery as grounds for divorce?
Even if you can prove the adultery, if you continued to live with your spouse for more than six months following your discovery of the adultery, you won’t be able to use this as a ground for divorce – unless the adultery is continuing.
Also, if you are the spouse committing adultery, you can’t rely on your own adultery as grounds to petition for divorce – it’s best to plead your spouse’s unreasonable behaviour instead, or ask your spouse to petition for divorce against you on the grounds of adultery.
A man who has committed rape can be considered as having committed adultery, but a wife who has been raped can’t.
When do you need to prove adultery, and how do you prove it?
You will only need to prove adultery if your spouse doesn’t formally admit it on their acknowledgement of service form. Your spouse may not defend the divorce, but you cannot progress without admission or proof of adultery. If you are in this situation, you will need to prove dates and locations of the adultery. This can be difficult and expensive, so it’s best to get legal advice from our divorce solicitors if you want to proceed down this route. It is extremely difficult to prove adultery in the absence of a formal confession and solicitors would usually recommend a petition based on behaviour instead if your spouse will not co-operate.
In all cases, if the adulterous spouse admits adultery on their acknowledgement of service form, then this is accepted by the Family Court as proof.
This means that your partner has behaved in such a way that you cannot reasonably be expected to continue living with him/her. Whilst such behaviour can include physical and verbal abuse, alcoholism, gambling and other extreme forms of behaviour, it more commonly relies upon quite mild particulars such as lack of affection and lack of support around the home. For these reasons, it is quite likely that anyone could come up with sufficient allegations about their spouse to successfully petition for divorce, reliant upon their spouse’s unreasonable behaviour. Resolution encourages spouses to try to agree the unreasonable behaviour allegations in advance and to keep the content as mild as possible.
How can you prove unreasonable behaviour?
If you can agree the allegations beforehand, and the divorce is uncontested, then you shouldn’t have to prove that your spouse’s behaviour was unreasonable. However, if your spouse is contesting the divorce and won’t admit to the grounds of unreasonable behaviour, then you may have to collect evidence and testimonies from friends, family or co-workers about their behaviour. Defended divorces are extremely rare, however, as solicitors can help the spouse being divorced to complete their acknowledgement of service in such a way that that protects their position but enables the divorce to proceed uncontested.
2 year separation
You can get a divorce if you’ve been separated from your spouse for 2 years or more since concluding that the relationship was over. It is possible to establish separate households under the same roof if certain conditions are satisfied. We can advise you about these. You must both agree to the divorce/dissolution proceeding reliant upon this fact.
What if your spouse contests a divorce on the grounds of 2 years’ separation?
If your spouse doesn’t agree to the divorce, you can try to use the other grounds of unreasonable behaviour or confessed adultery. Your other option would be to wait until you’ve been separated for five years, when you can get a divorce regardless of whether your spouse agrees to it.
We wouldn’t advise you to issue a divorce petition reliant upon 2-year separation without first checking that your spouse will consent, and to get that consent in writing.
5 year separation
You can get a divorce if you’ve been separated from your spouse for 5 years or more. He/she does not have to agree to the divorce/dissolution.
Your partner must have left you in order to end the relationship without your consent or good reason. You must have lived apart for more than 2 years in the past 2½ years. However, desertion is rarely pleaded as it is difficult to prove. This is because you must establish to the satisfaction of the court that you were unhappy about being deserted for the entire 2 year period. It is also difficult to prove the intent of the deserting spouse and when their intent to not return was formed. For example, one spouse might leave for a year but perhaps have intended to return. If they then changed their mind, their period of desertion would begin from the time they decided not to return to the remaining spouse. On this basis, it’s often easier to get a divorce on the grounds of 2 years’ separation – if your spouse agrees. If they don’t agree to the divorce on those grounds, it’s also possible to use the grounds of unreasonable behaviour instead – for example, it was unreasonable of your partner to abandon you for such a length of time. If they don’t agree to either of these grounds, then you could also wait another further 3 years and petition for a divorce on the basis of 5 years’ separation, which they don’t have to agree to.
Is desertion different to abandonment?
No, in the UK they are essentially the same thing. The difference in terminology comes from different states of America, where some states use the term desertion, and others abandonment.
What grounds can you use if your spouse is contesting or disagreeing to the divorce?
Spouses often ‘don’t agree’ to being divorced. However, active co-operation is only needed for adultery, by way of a formal confession, or a 2-year separation, which requires consent. If you divorce your spouse on unreasonable behaviour, provided your spouse does not actively contest your petition by filing a formal defence into court, then you can still proceed with the divorce simply by proving your spouse has received the divorce papers. In the absence of your spouse filing his/her acknowledgement of service form into the court, this can be done by personal service using a process server or a court bailiff. We can help you establish service if your spouse is not responding to your divorce papers. If you really feel unable, or unwilling, to divorce your spouse on unreasonable behaviour, then the remaining option is to wait and issue after 5 years’ separation, but this is a significant length of time to wait if you want to be out of the marriage and resolve your finances once and for all.
Is domestic violence a ground for divorce?
On its own, domestic violence isn’t a legal ground, but it can be used as an example of unreasonable behaviour – typically, judges take this kind of allegation very seriously.
Are ‘irreconcilable differences’ grounds for divorce?
In the UK, irreconcilable differences don’t count as a ground for divorce. However, it’s widely agreed that the grounds of unreasonable behaviour would usually cover irreconcilable differences.
Can you get a divorce when one of you lacks mental capacity?
It’s possible to get a divorce from a spouse who lacks the mental capacity to agree or disagree to the divorce. To prove that someone lacks mental capacity, they must be assessed by a mental health professional under the Mental Capacity Act 2005 and deemed by the Court of Protection to be a ‘protected party’. It’s important to note that this capacity may vary or change – the person could lack capacity one week and then later be assessed another week and be found to have capacity again.
To get a divorce from someone who lacks mental capacity, there will need to be a ‘litigation friend’ or deputy of the person who lacks mental capacity. This is someone who can act on their behalf – usually a friend or family member over 18. If nobody is willing or able to act as this litigation friend, you can apply to the court (the Official Solicitor) for one to be appointed. Once there is a litigation friend or deputy, the divorce case would proceed in the normal way, with them acting on behalf of the spouse.
There could be some differences in the financial settlement in a divorce where one spouse lacks mental capacity. Other considerations that may need to be examined in the financial settlement are the medical needs of the mentally incapacitated spouse and any effects of finances on their future care – for example, care home fees or specialist medical care.
The ‘no fault’ divorce
Solicitors have been campaigning for a no fault divorce for a long time. However, despite support from many senior judges and organisations such as Resolution, we remain in a situation where the government says that, whilst it is committed to considering no fault divorce, removing fault “would have to be considered as part of its more general consideration of what further reform may be needed to the family justice system”.