“I want a divorce. I’ve thought long and hard about this and I just can’t live with my husband or wife anymore. Its not one thing; its lots of things, I just can’t live with them anymore. It’s been a difficult decision to make but I am certain that I would like a divorce”.
As matrimonial solicitors, this is the sort of conversation we often have with clients when we meet them for the first time. We explain to our clients that there is only one ground for divorce; that the marriage has broken down irretrievably. To satisfy the court that there has been an irretrievable breakdown, the person who instigates divorce proceedings, also known as the Petitioner, must prove one of the following five facts:
Adultery and unreasonable behaviour are the two facts which are most often relied upon by divorcing couples. This is normally because once a decision to divorce has been made, people don’t then want to wait two years before starting proceedings.
Unreasonable behaviour often sounds like it will be acrimonious but that does not need to be the case. The Petitioner (the person instigating the divorce) must show that the Respondent (their spouse) has behaved in such a way that the Petitioner cannot reasonably be expected to continue to live with them. The test is subjective, so the Court will consider what is unreasonable to the Petitioner and the impact of the Respondent’s behaviour on them specifically. For behaviour to be ‘unreasonable’ it does not have to be extreme. A combination of less obviously unreasonable behaviour can be enough.
It is common to try and agree the allegations of behaviour with your spouse to avoid any undue distress. Beware however; if you cannot get your spouse’s agreement to the allegations of behaviour and they decide to defend the divorce petition, the Court may not allow your divorce to proceed. In the recent widely publicised case of Owens v Owens, where Mr Owens defended his wife’s petition, the court refused to allow Mrs Owens the divorce she was seeking. This places more emphasis on reaching agreement with your spouse as to the content of the divorce petition. We would always recommend seeking expert legal advice before issuing a petition to ensure that it is drafted accurately and adequately. At Wolferstans, we have a team of experts who can assist and advise you.