What Are the Grounds for Divorce in England and Wales?

What Are the Grounds for Divorce in England and Wales?

1. Introduction

As we will see in a moment, four years ago divorce law in England and Wales underwent perhaps its biggest change in its history. And the change actually greatly simplified the law.

But despite that simplification there remain many misunderstandings and misconceptions about the law.

And one of the most misunderstood areas is the ground for divorce.

As we will also see in a moment, there is, and (contrary to popular belief) has long been only one ground for divorce. And that ground did not actually change when the law was reformed in 2022.

This article will explain the grounds for divorce, and the historical reason behind many misconceptions surrounding it, before moving on to examine the present divorce process.

We will conclude this article by looking at two important topics: whether you can defend a divorce, and some special protections that the law provides for anyone who receives a divorce application issued by their spouse.

2. How Divorce has Changed

As mentioned above, divorce law in England and Wales underwent a radical change in 2022. However, the old law remains so entrenched in the public consciousness that it still clouds the way many people understand the law.

It is therefore necessary that, before we examine the present law on divorce, we first have a quick look at how it was before the new law came into force.

The standout feature of the old law was that it was fault-based. This meant that, unless the couple had been separated for at least two years, the party applying for a divorce had to prove one of three things:

• Adultery: That the other party had committed adultery.
• Unreasonable Behaviour: That the other party had behaved unreasonably.
• Desertion: That the other party had deserted them, for at least two years.

This requirement to prove fault was often confused with the ground for divorce, with the result that it would often wrongly be stated that the ground for divorce was ‘adultery’, or ‘unreasonable behaviour’, etc.

And that misconception lives on, with many people still thinking that they have to prove adultery or unreasonable behaviour in order to get a divorce.

But they do not. The new divorce law is ‘No-Fault’. There is no need to prove anything in order to get a divorce, as we will see in a moment.

3. The One Ground for Divorce

As indicated above, there is just one ground for divorce:

That the Marriage has Broken Down Irretrievably

It is often referred to as ‘Irretrievable Breakdown’.

And as also mentioned above, this is the same single ground for divorce as existed before no-fault divorce was introduced in 2022.

The big difference in the law relates to proving that the marriage has irretrievably broken down.

Under the old law you could only get a divorce if you could prove that the marriage had broken down irretrievably. This is where adultery, unreasonable behaviour and desertion came in – they were ways of proving that the marriage had broken down irretrievably. Thus if, for example, you could prove that your spouse had committed adultery, you were entitled to a divorce.

That all changed in 2022. It is now not necessary to prove that the marriage has irretrievably broken down – all you have to do is file with the court a statement that the marriage has broken down irretrievably, and the court will accept the statement as proof of that fact.

Having got that out of the way, we will now move on to look at how the current, no-fault, divorce process works.

4. The Divorce Process

The divorce process essentially comprises of three steps:

• The Divorce Application: A divorce can be applied for at any time after one year has elapsed from the date of the marriage – this is often referred to as the ‘One Year Bar’. The application can be made by either party to the marriage. However, for the first time the new law allowed applications to be made jointly by both parties. Currently, about a quarter of all applications are made jointly. The application must be accompanied by a statement by the applicant or applicants that the marriage has broken down irretrievably.
• The Conditional Divorce Order: No further step may be taken in the divorce until 20 weeks have elapsed from the start of the proceedings. This is sometimes referred to as the ‘Period for Reflection’. As that name suggests, its primarily purpose is to give the applicant(s) time to reflect and ensure that they do, indeed, wish to bring the marriage to an end. It also gives the parties a chance to sort out arrangements regarding any dependent children and finances, hopefully by agreement. Once the 20-week period has elapsed the applicant or applicants can apply for the Conditional Divorce Order, by confirming to the court that wish the application to continue. The court will then make the conditional divorce order, in favour of the applicant(s).
• The Final Divorce Order: The Conditional Order does not bring the marriage to an end, only confirming that the applicant is, or the applicants are, entitled to a divorce. To bring the marriage to an end the applicant(s) must give notice to the court that they wish the conditional order to be made final. Where the conditional order was in favour of both parties, but the notice is by one party only, that party must first give the other party 14 days’ notice of their intention to give notice to the court that they wish the conditional order to be made final. When the court receives a notice it will make the conditional order final, if it is satisfied that there is no reason not to do so. The Final Order brings the marriage to an end. Note that a final order should not normally be applied for until all financial matters relating to the divorce have been sorted out – if in doubt, take legal advice before applying for the Final Order.

There is one further point to be made about applying for Final Orders: Where a conditional order has been made on an application by one party and that party has not applied for the order to be made final, then, at any time after the expiration of three months from the earliest date on which that party could have made such an application, the other party can apply for the conditional order to be made final.

5. Can You Defend a Divorce?

Under the previous divorce system, it was possible for anyone in receipt of a divorce petition (referred to as ‘the Respondent’) issued by their spouse to defend the petition, on the basis that the marriage had not broken down irretrievably. This could lead to lengthy and expensive court proceedings, in which the parties argued over whether the marriage had in fact broken down.

All of that changed under the new law. It is now not possible to defend a divorce, save in two very limited circumstances. The fact that the respondent may not believe that the marriage has broken down irretrievably is immaterial – the court treats the statement by the applicant that it has broken down irretrievably as proof that it has.

The two situations in which a divorce can be defended are:

• Jurisdiction: If the Respondent does not believe that the courts have jurisdiction to deal with the divorce; and
• Invalid Marriage: If the Respondent can prove the marriage was never valid.

6. Special Protection for Respondents

Obviously, divorce can affect the financial circumstances of a spouse. The law therefore provides a special protection for respondents, to avoid financial hardship.

The respondent may apply to the court for consideration of their financial position after the divorce.

Where an application for a divorce order a conditional order has been made and the conditional order is in favour of one party, or is in favour of both parties but one of the parties has since withdrawn from the application, and the respondent has made an application for consideration of their financial position after the divorce, the court must not make the divorce order final unless it is satisfied:

(a) that the applicant should not be required to make any financial provision for the respondent, or

(b) that the financial provision made by the applicant for the respondent is reasonable and fair, or the best that can be made in the circumstances.

In making such a determination the court must consider all of the circumstances including: the age, health, conduct, earning capacity, financial resources and financial obligations of each of the parties to the marriage; and the financial position of the respondent as, having regard to the divorce, it is likely to be after the death of the applicant, should that person die first.

7. Seeking Advice

As will be seen, under the present law the ground for divorce is straightforward: one ground, with no need to prove anything. And the procedure on divorce is usually fairly simple too.

It may therefore be quite tempting to deal with your divorce yourself, without solicitors. However, in almost all cases it is advisable to consult a solicitor. And certainly, it is usually best to take legal advice regarding financial arrangements and (if they are disputed) arrangements for children. It is also advisable to consult a solicitor if there is a dispute over the court’s jurisdiction to deal with

the divorce, over the validity of the marriage, or if the respondent wishes to apply to the court for consideration of their financial position after the divorce.

Walker Family Law’s team of specialist family lawyers can deal with your divorce for you, and can advise in all of the above situations. To speak with one of our lawyers, simply complete and submit the form, on this page.