You can make an application for divorce (“petition”) if you have been married for over a year and you can prove that the marriage has irretrievably broken down. At present, no-fault divorces are not available in England and Wales and, in order to prove irretrievable breakdown, the person making the application (“petitioner”) will need to refer to one of the five legally defined facts :
The most commonly used facts are adultery or behaviour. When relying on the fact of behaviour, you will have to provide a number of allegations or examples of your spouse’s behaviour. These must satisfy the court that your spouse behaved in such a way that you find it intolerable to continue living with them.
The allegations can range from mild (for example, spending too much time at work) to extreme (for example, domestic abusive, excessive drinking or running up debts). There is no threshold for unreasonable behaviour. What one person finds unacceptable may be completely normal to someone else. The court does not have to establish if the allegations are true, only that the marriage has irretrievably broken down.
Behaviour is the most commonly cited fact in marital breakdown as it is often a means to an end when adultery is not an option and couples don’t want to have to wait for two years before they can divorce without attributing blame.
Although it can be unpleasant for a respondent to receive an application for a divorce based upon their behaviour, challenging the allegations will not help and is, in fact, more likely to end up costing time and money to both parties. The petition is confidential and, apart from the parties, their legal representatives and the court, no-one else will see the petition and what reasons are cited for the breakdown of the marriage.
People often mistakenly believe that if they don’t defend themselves against unreasonable behaviour allegations it will have a detrimental impact on any finances or childcare arrangements. However, the reason for the breakdown of the marriage rarely affects how the finances are dealt with and, more often than not, the content of the petition will be agreed between the spouses before it is sent to the court.
For more detailed information regarding grounds for divorce please see our guide here: A guide to the divorce procedure.