Divorce: what the law requires

by Liz Talbot

Many people who are looking to divorce their spouse think they need to show the Court that they have “irreconcilable differences”. Not so, the only ground for divorce is that the marriage has broken down irretrievably. That must be supported by one of five facts under Section (2)(a) – (e) of the Matrimonial Causes Act 1973 (as amended). The facts are: adultery, unreasonable behaviour, desertion, two years separation with consent, or five years separation where no consent is required.

The most common fact when petitioning for divorce is unreasonable behaviour. The least common is desertion. How does the Court decide if the behaviour is unreasonable enough? The test which is applied by the Court is subjective – does the petitioner consider that the behaviour of the spouse has been unreasonable? Whichever one of the five facts is relied on, we will ask you to provide the details. We will then draft the statement of case for the petition.

New rules came into force on April 6th 2011 with the introduction of the Family Proceedings Rules 2011. New forms and procedures are part of the new system, which is intended to modernise the language used, streamline the procedure, bring family law into line with Civil Procedure Rules 1998, and unify the code of practice. It was planned to stop using words like Decree Nisi, Decree Absolute and Petition. Unfortunately, the software which is used by the Courts would have needed updating and there were insufficient funds available. As a result, some of the old words are still in use, such as Petition and Prayer.

As solicitors we always take instructions from our clients but our aim is to guide you safely through the procedure from start to finish.

© Bonell & Co 2011. This article was published in May 2011 as part of the Resources section of our website.

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