Divorce in England & Wales is currently granted on the basis of the irretrievable breakdown of the marriage. We say ‘currently’ because there are recurrent proposals to amend the law which is unsatisfactory in many ways. Please note that ‘irreconcilable differences’ is not one of the reasons for divorce. There is no ground for divorce known as irreconcilable differences. There are currently five grounds for divorce which can be relied upon as evidence of the irretrievable breakdown of the marriage:-

(1) Adultery
(2) Unreasonable behaviour
(3) Desertion
(4) Two years’ separation with consent
(5) Five years’ separation without consent

Although divorces based on the last three grounds are by no means uncommon, in practice most are based either on unreasonable behaviour or adultery. The reason for this is that neither of these two grounds involve the wait which the other grounds involve. When a marriage breaks down it is not usually too difficult to find some instances of unreasonable behaviour on either or both sides and so this is, not unnaturally, seen as a route to a quick divorce. Once at least one spouse has become convinced there is no future to the marriage he/she usually prefers to end it sooner rather than later. Indeed, there are good reasons not to delay.

One very common reaction when, say, a husband receives a divorce petition based on unreasonable behaviour is something along the lines of, “Why, you’ve been quite as unreasonable as me and so I’m going to defend it and issue my own petition.” It is important to understand that the reason for the divorce has, in the overwhelming majority of cases, no impact whatever on the other two issues which may need to be resolved – the questions of financial provision and/or any disputes affecting residence or contact with the children. These two latter issues are quite separate and dealt with completely independently of the divorce and using quite different criteria.

Once this has been explained that the reason for divorce is not relevant in divorce laws it is normally possible to allow it to proceed without acrimony and neither party need ordinarily attend court. It is, however, often a tricky issue to handle at the outset and, although it is perfectly possible to have an “amicable” divorce and very many people do so each year, the way it is dealt with in the initial stages can have a major impact on what happens later. Unfortunately, there are a number of matters on a divorce petition whose meaning is not immediately obvious to a lay person and these technicalities often cause difficulties where there need not be any. Indeed, it is very often the receipt of the divorce petition and the “Acknowledgment of Service” which prompts a client to consult a solicitor for the first time about a divorce.

In point of fact it is rarely possible to defend a divorce for two main reasons. Firstly, the fact that one party to the marriage has presented a divorce petition is a clear indicator of a serious breakdown in the relationship. Secondly, Legal Aid is hardly ever available to defend a divorce mainly for the reason given above. Although divorce petitions can be contested that is uncommon and most solicitors would only recommend such a course if there was some clear advantage to be gained by doing so. Such cases are rare although very occasionally there are good reasons to file a cross petition.

There are, however, other issues which very often depend upon divorce and most people contemplating issuing a divorce petition or who have received one should very likely take legal advice so that they fully understand the position and the issues involved. The one which causes the greatest number of disputes is almost certainly  the one of resolving the financial issues arising from the marriage – what is to happen to the former matrimonial home, whether and how any pensions should be shared etc. There are also specific issues about divorce of concern to men in particular to which some attention needs to be paid if the husband is not to come out of the process feeling aggrieved and regarding himself as the victim of injustice. And, of course, most people want to know that the costs of a divorce and the time scale are. This latter point can be especially important if one of the parties wishes to remarry. Finally, there is the remote possibility that a decree of judicial separation might be more appropriate than a divorce but one should reflect very carefully indeed if one is ever presented with this latter option. Frequently it is suggested but it is rarely appropriate.

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