In England & Wales a Divorce is granted on the basis of ’the irretrievable breakdown of marriage’. Please note that ’irreconcilable differences’ is not one of the reasons for divorce. There is no ground for divorce known as irreconcilable differences.
However, there are five grounds for divorce which can be relied upon as evidence of the irretrievable breakdown of the marriage:-
Husband or wife had sex with someone else of the opposite sex, and you can no longer bear to live with him/her.
It should be pointed out that you cannot give adultery as a reason if you lived with your husband or wife for 6 months after you found out about the adultery.
Husband or wife behaved so badly that you can no longer bear to live with them.
- For example;
- Physical violence;
- Verbal abuse [insults or threats];
- Drunkenness or drug addiction;
- Refusing to provide household maintenance.
Husband or wife has left you:
- -without your agreement
- -without a good reason
- -to end your relationship
- -for more than 2 years in the past 2.5 years
[You can still claim desertion if you have lived together for up to a total of 6 months in this period]
You can get a divorce if you’ve lived apart for more than 2 years and both agree to the divorce.
Your husband or wife must agree in writing.
You have lived apart for more than 5 years
Living apart for more than 5 years is usually enough to get a divorce, even if your husband or wife disagrees with the divorce.
NOTE: It is important to understand that the reason for the divorce has no impact whatsoever on the other two below issues which may need to be resolved;
- the questions of financial provision; and/or
- any disputes affecting residence or contact with the children.
These item 2 issues are quite separate and are dealt with completely independently from the divorce and using quite different criteria.
You can get a divorce if you have been married at least a year and your relationship has permanently broken down.
In order to get a divorce, you must have a marriage that is legally recognised in the UK, and have a permanent home in England or Wales.
There are 3 main steps to getting divorced:
- Filing a divorce petition - you have to apply to the court for permission to divorce, and show reasons why you want the marriage to end.
- Applying for a decree nisi - if your spouse agrees to the petition, you’ll get a document saying there’s no reason you can’t divorce.
- Applying for a decree absolute - this legally ends your marriage - you need to wait 6 weeks after you get the decree nisi before you can apply.
In order to start a Divorce, you need to;
Fill in a divorce petition form
- You must include your:
- full name and address;
- husband or wife’s full name and address;
- marriage certificate - the original certificate or a copy from a register office;
Include the names and dates of birth of any children (no matter how old they are).
NOTE: If you name the person your husband or wife was unfaithful with, they will get copies of the paperwork.
Pay the court fee
You will have to pay a £410 court fee to start a divorce.
You may be able to get help with court fees if you’re on benefits or a low income.
Send the forms
Once you have filled in the forms:
You will have to send 2 copies of the divorce petition form to the court (3 copies if you named the person your husband or wife had an affair with) [Forms are sent to the nearest divorce court]
Respond to a divorce petition
If your husband or wife has started divorce proceedings against you, the court will send you a ’divorce petition’
- You will also get
- a notice of proceedings form
- an acknowledgment of service form
You need to respond by filling in the acknowledgment of service form.
Agree with the divorce
To agree with the divorce petition, the husband or wife fills in and returns the acknowledgment of service form to the court within 8 days, and the divorce will go ahead.
Disagree with the divorce
To disagree with the divorce petition the husband or wife fills in the acknowledgment of service form and returns it within 8 days.
The court will send copies to the husband or wife.
After the form is returned, you have up to 21 days to say why you are defending the divorce. This is called ’giving an answer’.
When a divorce is defended or both sides file divorce petitions, the court will usually hold a hearing to discuss the case. The husband or wife will usually have to attend to try to come to an agreement over the divorce.
C.Custody of Child(ren)
In family law, the Court can order a Residence Order of the Family Court under section 8 of The Children Act 1989 following the breakdown of a marriage and determining where the children are to live and with whom. The order can be sole or joint, and if joint, it can be made to a couple regardless whether they are married. If a residence order is granted, this automatically gives him, her, or them parental responsibility for the child(ren) which will continue until the order terminates (usually this will be until the child(ren) reach their sixteenth birthday unless there are exceptional circumstances justifying a longer period).
The following can make an application for a Residence Order under section 8 of The Children Act 1989:
- The parent or guardian of the child(ren);
- A married step-parent of the child(ren) where the child(ren) lived with the step-parent as child(ren) of the family;
- Anyone with whom the child has lived for at least three years (this period need not have been continuous but must have been recent);
- Anyone who,
a) Where there is already a Residence Order in place has the consent of every one who holds that Order, or
(b) Who has the consent of the local authority where the chid is in their care, or (c) has the consent of every one who has parental responsibility for the child. If an applicant cannot apply for the Order as of right, (e.g. they are wider family members such as grandparents etc. who wish to seek orders for their grandchildren), they can make an application to the court seeking leave to issue the application. In deciding whether to grant leave, the court will consider, amongst other things:
- The nature of the application;
- The applicant's connection with the child; and
- The risk that the proposed application might disrupt the child(ren)’s life to such an extent that they should be harmed by it.
The Welfare Principle
So as to fully protect the best interests of children, the English courts generally operate under the doctrine of parens patriae.
[NOTE: In law, parens patriae refers to the public policy power of the state to intervene against an abusive or negligent parent, legal guardian or informal caretaker, and to act as the parent of any child or individual who is in need of protection. For example, some children, incapacitated individuals, and disabled individuals lack parents who are able and willing to render adequate care, thus requiring state intervention.]
From time to time, this doctrine has been included in statutes, the most recent relevant version being section 1 of The Children Act 1989 which requires the court to consider the ”welfare checklist”.
Before making a section 8 order (i.e. a residence order) the court must consider:
- The ascertainable wishes and feelings of each child concerned (considered in light of his or her age and understanding);
- His or her physical, emotional and/or educational needs;
- The likely effect on him or her of any change in the circumstances;
- His or her age, sex, background and any other characteristics which the court considers relevant;
- Any harm which he or she has suffered or is at risk of suffering;
- How capable each of his or her parents and any other person in relation to whom the court considers the question to be relevant, is of meeting his or her needs;
- The range of powers available to the court under the Children Act 1989 in the proceedings in question.
D.Parental Child Abduction- UK
Parental child abduction is child abduction by a parent. It often occurs when the parents separate or begin divorce proceedings. A parent may remove or retain the child from the other seeking to gain an advantage in expected or pending child-custody proceedings or because that parent fears losing the child in those expected or pending child-custody proceedings; a parent may refuse to return a child at the end of an access visit or may flee with the child to prevent an access visit or fear of domestic violence and abuse.
Depending on the laws of the state and country in which the parental abduction occurs, this may or may not constitute a criminal offense. For example, removal of a child from the UK for a period of 28 days or more without the permission of the other parent (or person with parental responsibility), is a criminal offense. In many states of the United States, if there is no formal custody order, and the parents are not living together, the removal of a child by one parent is not an offense. In Australia the absconding parent, usually the mother, is awarded with the Family Court's presumption of residency status quo after keeping the child for a minimum of three weeks
E.Money and property when a relationship ends
The husband or wife can work out an agreement with his/her partner to avoid going to court.
Once an Agreement has been reached then the parties can get the court to make it legally binding, by applying for a ’consent order’.
If the husband or wife can’t agree then they can ask the court to decide using a ’financial order’ if you can’t agree.
It is highly recommended by English courts that Mediation be considered before bringing this matter to the courts.