To satisfy the court that the relationship has broken down irretrievably, the person issuing the divorce or dissolution proceedings (the petitioner) must demonstrate to the court of one of the following facts:
This fact is not available for civil partners to rely upon which is the cause of much debate. For married couples, the petitioner must prove that the respondent (the other party in the proceedings) has committed adultery and that the petitioner finds it intolerable to live with the respondent. An admission of adultery by the respondent will provide satisfactory proof. It is possible to name a co-respondent within the divorce proceedings however this is generally discouraged unless there is a compelling reason to do so.
2. Unreasonable behaviour
This is the most frequently relied upon fact within divorce and dissolution proceedings. The petitioner must demonstrate that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent. The allegations of behaviour contained within the petition do not ultimately have to be admitted by the respondent. However, the court must be satisfied as to the effect of the respondent’s behaviour upon the petitioner.
To satisfy this fact the respondent must have deserted the petitioner for a continuous period of at least two years preceding the presentation of the petition. The petitioner must show that there has been non-consensual separation and that the respondent had an intention to desert (i.e. there was no other justifiable reason for their leaving).
4. Two years separation by consent
For some couples who have separated amicably, this fact presents a “no fault” based approach. Both parties must consent to the divorce or dissolution following a period of two years separation. The parties must be considered to be living apart during the two year period even if they are living in the same household.
5. Five years separation
Following a period of five years separation there is no need for the respondent to consent to the divorce or dissolution. This fact does however carry a defence to divorce or dissolution if the respondent can demonstrate that the ending of the marriage or civil partnership would result in grave financial or other hardship to the respondent and in all the circumstances it would be wrong to dissolve the marriage or civil partnership.
Hill Dickinson has a wealth of experience in dealing with the full range of family law issues. If you have any queries relating to the above, or any other legal matter, please do not hesitate to contact us for advice.