Questions surrounding divorce

In this week’s column Victoria Strode from Mogers Drewett looks at questions surrounding divorce.

What are the grounds for a divorce?

There is only one ground for a divorce and this is that the marriage has broken down irretrievably. However, if you wish to divorce then you would need to show one of the following five facts;

  • Your spouse has committed adultery and you find it intolerable to live with them
  • Your spouse has behaved unreasonably and you cannot reasonably be expected to live with them
  • There has been desertion for a continuous period of at least two years
  • You have been separated for two years and your spouse consents to the divorce
  • You and your spouse have been separated for five years- the divorce can progress without your spouses’ consent.

How long do I need to be married before I can apply for a divorce?

Under UK law you must be married for a minimum of one year before you can commence divorce proceedings. However, when a divorce petition is presented to the Court it can include matters which occurred within the first year of marriage.

What would constitute unreasonable behaviour?

The Court will consider a variety of behaviour and will also consider the impact it has had on you. Whilst some behaviour petitions may be based on violence or other severe behaviour, the Court will also consider issues such as constant verbal disagreements and a lack of intimacy and love in the marriage. As there is not currently a ‘no fault’ fact that can be relied on without waiting two years, the Courts are more willing to allow ‘mild’ unreasonable behaviour particulars so that matters can start on a more amicable footing.

I have separated from my partner but do not feel ready for a divorce, how can I protect myself financially?

A separation agreement can be drawn up which deals with the financial issues in the interim. This can deal with matters such as division of property and other assets, spousal maintenance and child maintenance. An agreement can also be reached as to who will initiate divorce proceedings in the future and what ground will be relied on.

If you are able to come to an understanding then the agreement can resolve many of the financial issues which would arise in a later divorce. However, whilst this document can be persuasive, it is not binding, and either party could renege on the provisions contained in it. A binding Court Order can only be obtained as part of divorce proceedings.

My partner has served divorce papers on me but I want to stay married. What shall I do?

You will need to return certain papers to the Court explaining that you wish to defend the divorce. This can lead to a hearing in open Court. As such, the application can be very expensive and in the majority of cases, is unlikely to be successful.

If there is an opportunity to save the marriage then you could suggest marriage counselling and your spouse could decide to withdraw the petition.

Will I need to attend Court?

Unless the divorce is defended it is very unlikely that a Court appearance will be required. The Court will correspond by letter.

For further information or advice on this subject please  call 01935 813691


Mogers Drewett

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