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.
It is not unusual for a couple who are having difficulties in their marriage to agree to a trial, or temporary separation before deciding on divorce.
A trial separation can obviously be a useful way to save a marriage, rather than going straight ahead with a divorce, without giving the marriage a chance.
Divorce proceedings can obviously be stopped before they are completed, but they do tend to have a life of their own, and the mere fact of issuing them can bring a marriage that could have been saved to an end.
A trial separation will give the couple the space to reflect, to decide whether they wish to remain married, and indeed whether the marriage can be saved.
So yes, a temporary separation before divorce can be helpful. But what about the legal consequences?
A very short trial separation would probably have few or no legal consequences, especially if there are no dependent children.
However, the parties are unlikely to know at the outset how long the separation might be, and a longer separation could well have legal consequences.
These consequences may be immediate or may relate to the effect of the separation upon any subsequent divorce settlement.
Separation obviously means that at least one of the parties will have to find somewhere else to live and that the joint family income will have to be shared across two households.
This in turn leads to issues relating to arrangements for any dependent children and to maintenance for those children (and, possibly, for the less well-off party).
Hopefully, the parties will be able to agree on these matters, although they may well require legal advice in order to do so.
And if matters can’t be agreed between the parties directly then they should consider trying to agree to them with the help of mediation. For more information about mediation.
If they are able to agree to matters then they may wish to formalise the agreement by entering into a written separation agreement, which should be drawn up by solicitors.
And if matters cannot be agreed then an application to the court may be required (or to the Child Maintenance Service for child maintenance).
The court can obviously sort out arrangements for children. It also has the power to award maintenance to one spouse, even if the marriage is continuing, and can even order that one spouse pay a lump sum to the other.
What the court cannot do, however, is make property or pension orders for the benefit of one spouse, as it can if there are divorce proceedings.
Obviously, the temporary separation before divorce may end with the complete breakdown of the marriage in any event.
If this happens then the separation can have consequences for any final divorce settlement.
For example, one of the factors to be taken into account in a divorce settlement is the duration of the marriage. In general, the court will consider the marriage to have come to an end when the parties separated. A long separation may therefore have consequences for the settlement, especially if it had not been a long marriage prior to the separation.
Another possible consequence relates to any wealth accrued after the separation. In certain circumstances that wealth may be left out of account when deciding the divorce settlement, meaning that the party who accrued the wealth will keep it, rather than it going into the ‘pot’ for division.
As stated above, a trial separation can be a very useful way of testing whether a marriage that has got into difficulties has indeed broken down. Many marriages have no doubt been saved by a ‘successful’ trial separation.
However, it must be understood by the parties that a trial separation can have legal consequences. It is therefore best if they both take independent legal advice before embarking upon the separation.
Ian Walker Family Law & Mediation Solicitors are award-winning family solicitors and are 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 the team to speak to one of our specialist solicitors.
The Divorce Support Club provides individuals with a safe, informal place to ask questions and gather a toolkit to help you manage emotions, get clarity around the things that worry or scare you and focus on what you CAN do, so that you feel stronger and more confident. Meeting via monthly online webinars we talk about strategies to help you take back your power, challenge negative thinking, and focus on taking positive steps forward.
It is a sad fact that when separated parents fall out then each may make threats against the other.
One such threat, and unfortunately not an uncommon one, is that one parent will take their child from the other.
But when it comes to the question, can my ex take my child away from me? Ultimately, the decision of which parent a child should live with, is a matter for the family court to decide, rather than the parents.
Of course, one parent may attempt to take the law into their own hands, so we will examine here two scenarios: where one parent seeks to take the child from the other through the courts, and where they try to do so without a court order.
(Note that, for simplicity, we use here the term ‘residence’, to indicate with whom the child will reside, or spend most of their time. Residence is, in fact, an old term, replaced by child arrangements orders that state with whom the child should live.)
Obviously, it is usually the case that when parents separate their child will reside primarily with one of the parents.
And obviously the other parent may think that the child will be better off residing with them.
In such a situation, the proper course for the other parent is to apply for a child arrangements order, stating that the child should live with them, not the other parent.
When deciding what order to make the court will consider what is best for the welfare of the child.
And to determine what is best for the welfare of the child the court will consider a number of factors, including:
In short, when it comes to the question, can my ex take my child away from me? If the court decides that your child will be better off living with your ex then, yes, it can order that the child be taken from you. However, even then the court would normally expect that you have regular contact with your child.
Sometimes, as we have said, a ‘non-resident’ parent may seek to take the law into their own hands, by taking the child from the other parent, or perhaps by refusing to return the child to the other parent after contact.
What should the parent with whom the child lived do in such a situation (assuming they think the child should live with them)?
The answer is to make an urgent application to the family court for an order that the child be returned to them.
And such an application will be determined by the court in exactly the same way: by reference to what is best for the welfare of the child.
And as mentioned above, one of the factors that the court will specifically consider is the likely effect on the child of any change in his or her circumstances. Accordingly if, as may often be the case, a sudden move from one parent to the other is considered to be bad for the child’s welfare, then the court may well order that the child be returned to the parent with whom they were living.
Whether the other parent has taken your child from you or has applied to the court for an order that your child live with them, you should take urgent legal advice. For more information, see our Child Law Solicitors page. In the event that social services are involved in your case, please see our Child Law Involving Social Services page. To contact a member of the team, please visit our Contact Us page.
Ian Walker Family Law & Mediation Solicitors are award-winning family solicitors and are 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.
