Where the priority is to bring the marriage to an end and to settle the legal consequences once and for all – divorce is the most likely option. In English law divorce is still founded on ‘fault’ based solutions. Every divorce is based upon irretrievable breakdown of the marriage but supported by one of five factors.
Grounds for divorce
The third party need not be named and in some circumstances this can be disadvantageous in any event. The ground still carries an element of fault and this means that costs could be pursued against the ‘guilty’ party.
2. Unreasonable behaviour
Perhaps the most common ground for divorce, unreasonable behaviour, is a subjective test; it is not necessary for your partner to agree the ground. It is possible and probably desirable, to try and agree the grounds for divorce with your partner in advance. This helps to avoid surprises or create tension for citing sensitive issues might be emotive and should be avoided if possible.
Rarely used now there must be an intention to desert and at least two years desertion before the ground applies.
4. Two years separation plus the other party’s consent
Often termed the ‘no fault’ ground for divorce where the parties rely upon the fact that they have lived separate and apart for two years and the party receiving the papers consents to the divorce being granted; this is a popular ground as it carries ‘no fault’. The disadvantage of the two years separation ground is that no Orders for financial provision can be made until the proceedings have actually started. This is often why couples opt for the unreasonable behaviour or adultery ground rather than wait for two years to elapse.
5. Five years separation
Where the parties have lived separate and apart for five years the consent of the other party is not a requirement for the divorce to be granted.
- In all of the above the divorce papers must be served on the other party apart from some very limited exceptions. It is therefore imperative that his or her whereabouts are known to the petitioning party.
- The process of divorce (without reference to children or financial matters) can usually be concluded within three to six months.
- The petitioning party has ‘control’ of the process.
- There are two stages to the divorce; a Decree Nisi and a Decree Absolute
- The Decree Nisi is significant for it is the point beyond which the Court can go on to make Orders for financial provision (Maintenance, Lump Sum Orders, Property Adjustment and Pension Sharing Orders).
- The Decree Absolute is the final decree. It enables the parties to entertain remarriage. It is also the trigger for a Pension Sharing Order coming into force.
- Divorce depends upon the parties being ready to contemplate moving on. This can often be precipitated by a desire to remarry. Frequently one party is rather more ready than the other to embark on this path and the party receiving the papers may find it more difficult to adjust.
- The costs of divorce are relatively easy to quantify as the process involves a finite number of steps. Payment of the Court fee is required upon the issue of the Petition (£550). This is a standard fee applicable throughout the country. Those with limited resources may qualify for fee exemption or fee remission.