It’s a question that has been asked pretty well ever since civil divorce became a possibility in the 19th century: what are the grounds for divorce?
The question is actually misunderstood by many, who believe that the grounds for divorce are such things as unreasonable behaviour or adultery.
But the grounds for divorce is in fact none of those things – which, incidentally, were consigned to history by the advent of no-fault divorce last year.
But the introduction of no-fault divorce did not actually change the grounds for divorce which is, quite simply, that the marriage has irretrievably broken down.
In short, the law will grant a divorce whenever the marriage has broken down, with no prospect of it being saved.
And this, as most people will no doubt agree, makes perfect sense: there is obviously no point in requiring the parties to remain married, when it is clear that the marriage has ended.
But that was not necessarily how the law worked prior to the introduction of no fault divorce.
The reason for that was that it was then necessary to prove that the marriage had irretrievably broken down because the other party had committed adultery/behaved unreasonably, etc.
And that meant that if one party wanted a divorce they couldn’t get one if they were (for example) unable to prove that the other party had behaved unreasonably.
Which resulted in the absurd position of a marriage that was forced by the law to continue, even where it was clear to all that it had broken down irretrievably.
Thankfully, all that changed with the introduction of no-fault divorce.
Under the new system all that is required is for one or both of the parties to file with the court a statement that the marriage has irretrievably broken down. There is no need to prove irretrievable breakdown – the court will accept the statement as proof of that fact.
But what if the other party does not agree that the marriage has irretrievably broken down?
It does not matter. The other party has no right to defend the divorce.
And whilst this may seem unfair to some, it also makes perfect sense: there is obviously no point in forcing a marriage to continue when one of the parties wants it to end. A marriage requires the consent of both parties, and without that it is over, whatever the law might say.
Many people believe, rightly or wrongly, that the breakdown of their marriage was due to the fault of their spouse, and that their spouse should be ‘punished’ accordingly.
And under the old system people who thought this way could achieve some sort of ‘justice’ by blaming their spouse for the breakdown of the marriage, for example because they had committed adultery or behaved unreasonably.
Under the new system that is no longer possible. The court simply isn’t interested in why the marriage broke down, only that it has.
The only time when the court might be interested in the conduct of the parties is in connection with the financial settlement: bad conduct by one party could result in them receiving a less generous settlement. However, it must be understood that the conduct must be particularly serious for it to effect the settlement. Adultery or minor incidents of bad behaviour will not be enough.
In short, whilst the advent of no-fault divorce has not actually changed the grounds for divorce it has in a sense made the question of what are the grounds for divorce redundant, as there is no longer any issue to argue: such things as adultery and unreasonable behaviour, long believed by many to be grounds for divorce, are no longer arguable.
There is only one ground for divorce: that the marriage has irretrievably broken down. And if one party tells the court that that is the case, then that is the end of the matter.
For further information, please see the Divorce page. We also have a Divorce Support Club, to provide support whilst going through divorce.
Ian Walker Family Law & Mediation Solicitors are award-winning family solicitors, recognised as one of the leading family law firms in the South West of England with services covering family law & mediation, divorce law, child-law and arbitration.
Please contact us if you require any further information.