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The Initial Step In Issuing Divorce Proceedings
- AuthorElizabeth Sadiq
In this era, where divorce rates have been gradually increasing, it is quite normal to think that people are divorcing at the drop of a hat. Even though it seems that people are able to obtain a divorce easily, the law actually regulates this by limiting the grounds under which someone can issue divorce proceedings.
There is now only one way that enables you to start divorce proceedings and it is to demonstrate that the marriage has irretrievably broken down.
To prove that the marriage has irretrievably broken down the person issuing proceedings will need to establish one of the following five facts, often referred to as grounds.
1. Spouse Has Committed Adultery And They Find It Intolerable To Live With The Wrongdoer
This is a two strand test where even though both aspects have to be demonstrated they don’t have to relate to each other. The committal of adultery needs to be present and be factually demonstrated but then you will also need to demonstrate that you find it intolerable to live with the person even if the reason behind this do not relate to the adultery in any way. As stated, the intolerable conduct does not have to relate to the incident of adultery but they are usually linked in the sense that following an adultery the other spouse often cannot continue to live with the wrongdoer. In circumstances where the adultery is forgiven, once 6 months has passed you will not be able to rely on the previous incident of adultery to issue divorce proceedings. However, if during this period of 6 months the reconciliation breaks down then it is still possible to proceed on this basis.
2. Spouse Has Behaved In Such A Way That They Cannot Reasonably Be Expected To Live With The Wrongdoer
This is a subjective test which means that the court will look at the situation of each individual. You would need to show how the behaviour has affected you in such a way that you cannot reasonably be expected to continue living with them taking into account the whole of the circumstances and the character and personalities of the parties.
The behavioural aspect can take many forms and the court will look at each case individually. Some of the more common examples include: violence, failure to support, drug or drink related issues but the issues do not have to be as serious as this and can include such things as physical absence or lack of help maintaining the household. You would be expected to describe a few events and explain how they affected you.
3. Spouse Has Deserted For A Continuos Period Of At Least Two Years
Desertion is defined as a wilful and unjustifiable abandonment of one's spouse without consent and in violation of marital legal or moral obligations. This reason is rarely used as it is not common for a spouse to just leave the marriage and disappear without any justification. This is why the law requires the desertion to last a minimum of 2 years to show that there is no intention for the other party to come back.
4. Two Years' Separation With Consent
Under this ground, both parties need to have been separated or living apart for a period of 2 years and they both need to agree to the divorce. If you are separated but are still living under the same roof you will need to demonstrate that there is in fact two separate households under the same roof and that the two of you live entirely separately. If there has been an attempt of reconciliation within these 2 years where you have moved back in together then you will only be able to issue divorce proceedings if the reconciliation period does not exceed 6 months. If this is the case, you will still need to comply with the required separation period of 2 years not taking into account the period of reconciliation.
5. Five Years’ Separation Without Consent
Under this ground, both parties need to have been separated or living apart for a period of 5 years, and no consent is required. Therefore both parties will be able to start divorce proceedings without consent of the other. As above, if you are separated but are still living under the same roof you will need to demonstrate that you live entirely separately and how it can be seen within the household. If there has been an attempted reconciliation within these 5 years where you have moved back in together, then this period will not be taken into account as long as it does not exceed 6 months. Nevertheless, you will still need to comply with the 5 year requirement without taking into account the period of attempted reconciliation. Since this option does not require consent, one should be aware that there is a greater risk of the other party defending the divorce which can delay the procedure and incur greater costs.
If you are thinking about getting a divorce, Fishers Dewes Solicitors are offering a fixed fee consultation so you can make the right decision from a legal perspective.