How to select your reasons and file for divorce
We know that all divorces filed in England and Wales will eventually – following legislation concerning no-fault divorce having passed – rely solely on the fact that a marriage has broken down. Until then, though, every divorce filed must cite one of five reasons:
- Unreasonable Behaviour
- Two-Year Separation with Consent; or
- Five-Year Separation
In order for any of these ‘grounds’ to be used successfully, the Divorce Petition will need to contain specific pieces of information.
Each ground for divorce explained
When a divorce petition cites adultery, it must state when the Petitioner (the spouse that initiates the divorce) found out that the Respondent (the spouse that didn’t file for divorce) committed adultery and how (e.g. the Respondent confessed to it, they found messages on the Respondent’s phone etc.).
The date on which they then separated (you can find out when a married couple are legally viewed as separated here) will also need to be included. Importantly, this will need to have been within six months of the adultery having been discovered. If the couple did not separate within six months, then it is presumed that the adultery was forgiven and will not be viewed as an acceptable reason for the divorce to proceed.
It’s also important to add that whilst a spouse can technically commit adultery whilst they and their husband/wife are living separately, this is not an acceptable ground for divorce. When cited, adultery must be the reason a couple separated and any act of adultery that took place whilst a couple where living separate lives is therefore not a valid ground for divorce.
In order to successfully obtain a divorce relying on desertion, one spouse will need to have left the other with the intention of never returning. This must also have taken place at least two years before the Petitioner formally requests a divorce.
Because proving the Respondent departed with no intention of returning is highly problematic, this ground is rarely used.
A divorce petition that relies on unreasonable behaviour must feature at least four examples of the Respondent’s behaviour that the Petitioner found to be upsetting, hurtful etc. Each of these must include information concerning the frequency of the behaviour (e.g. ongoing throughout the last two years of the marriage) or an approximate date if the example cited is a one-off occurrence rather than prolonged behaviour. The Petitioner should also state how the Respondent’s behaviour affected them in each case.
An approximate date of separation will also need to be provided and any examples of unreasonable behaviour used must not have taken place outside of the six-month period that preceded the date of separation.
You can find common examples of unreasonable behaviour that a divorce court will find acceptable here.
Two-Year Separation with Consent
As the name suggests, for a divorce application relying on this ground to succeed, the couple in question must have been living separately for at least two years and also agree to the divorce.
Divorce petitions relying on the ground of two-year separation with consent will need to state the date on which the couple in question began living separate lives but no further details are needed.
As with two-year separation, the only information required here will be the date on which the couple began living separate lives.
Unlike two-year separation, however, a divorce reliant on this ground can be obtained with the Respondent’s consent – though the process will be made more complicated and expensive.
How to choose the right divorce ground
When choosing which ground to cite, two things should be considered: circumstances and the Respondent.
If the parties have not been living apart for at least two years, then they will be unable to use either of the grounds that rely on minimum periods of separation. Additionally, if neither spouse committed adultery, they will need to rely on unreasonable behaviour. So, the first thing to note is that the grounds selected must be an accurate reflection of the couple’s circumstances, lest the Petitioner could find themselves facing a charge of perjury. Equally important, though, is the need to ensure that the fine details are agreed by both parties.
Things like the date of separation, how the adultery was discovered and when, specific examples of unreasonable behaviour etc. should all ideally be agreed by both spouses before the divorce is filed. The process is significantly more straightforward when these issues have been agreed beforehand and we’d always recommend that spouses make the effort to discuss the grounds they can use and iron out the finer details before preparing their divorce petition. Doing so will prevent the Respondent from receiving a nasty shock and, as this is so often the cause of prolonged proceedings, will go a long way towards ensuring the divorce process runs smoothly.
If an agreement cannot be reached, it’s still possible to obtain a divorce provided the grounds of unreasonable behaviour or five-year separation are used, though it may be necessary to use a solicitor under such circumstances.
What to do before filing for a divorce
Once the grounds for divorce have been chosen and the supplementary information that will need to accompany them have been agreed, it’s almost time to start the divorce process. There are, however, two things we’d advise everyone do first:
Find the marriage certificate
When applying for a divorce, a completed divorce petition needs to be submitted to court (or Divorce Centres as they’re now known) along with the original or a certified copy of the marriage certificate.
Unsurprisingly, these documents are regularly misplaced and, whilst this often sends those looking to apply for a divorce into a panic, replacing a marriage certificate with a certified copy is generally a straightforward task. Obtaining a certified copy can be more problematic if the marriage was held overseas but it is not an insurmountable task. Anyone that finds themselves in such a situation should contact their wedding planner, the venue that held their wedding or, failing that, the territory’s British embassy.
Check if you can save on the court fees
Sadly, when an application for divorce is submitted, a fee needs to be paid to the court. The standard charge is £550 but a surprisingly large number of people are not aware of the fact that they can probably have this fee reduced or, under the right circumstances, won’t need to pay it at all.
So, before applying for a divorce, people should check if they’re entitled to any kind of discount on the court’s £550 divorce filing fee.
And here’s how to file for a divorce in England or Wales
In order to file for a divorce in England or Wales, a divorce petition (also known as a D8 form) will need to completed and then submitted to the court alongside the original or a certified copy of the marriage certificate. A cheque for the court fees can be submitted alongside these, though it is now possible to instead request that the court contact the Petitioner in order to take the payment via a credit card.
Before filing for a divorce, people should always decide which grounds they will use. If possible, both spouses should discuss and agree what ground will be used as well as what additional details will be provided to support the divorce application.
People will also need to find their original marriage certificate or obtain a certified copy. It’s also highly advisable that they check if they can have the court fees for divorce reduced.
Finally, once this has been done, they can file their divorce application online or by post.