Q. My wife and I have decided we want to end our marriage. There has been no adultery and there are is no particular reason for our separation other than we both want a fresh start. Which ground for divorce is available to us?
There is only one ground for divorce in our law – the irretrievable breakdown of a marriage. In order to prove to the court that a marriage has broken down irretrievably, you must prove one of the following 5 facts:
- Unreasonable behaviour
- Separation for 2 years with both parties consenting to the divorce
- Separation for more than 5 years.
Numbers 1 and 3 do not apply in your case but numbers 2, 4 and 5 are possibilities for the reasons outlined below.
The definition of ‘unreasonable behaviour’ is that one spouse has behaved so badly that the other can no longer tolerate living with him/her. At first glance you may think this is not applicable. An unreasonable behaviour petition is the most common, probably because it allows a couple to divorce straightaway. The behaviour must be briefly outlined in the petition. In practice, the behaviour that is blamed for the breakdown of the marriage is often not serious and in fact solicitors’ good practice guides recommend drafting the petition in the least inflammatory way possible. Very often, extremely mild examples of unreasonable behaviour are used. In most cases, even in the most amicable of separations, there will be some sort of behaviour that can be used in such a petition.
However, some people are uncomfortable with the concept of fault and blame in a divorce. In this circumstance, a separation petition is a more viable option. This may mean that there will be a delay before you can apply for the divorce as the minimum period of separation is 2 years. It is worth knowing that the definition of ‘separation’ is fairly wide. A married couple can technically be separated even if they are still living together as long as they can demonstrate that they lead separate lives under the same roof. For example, they must not share a bedroom and should carry out chores separately. Therefore, if you consider that you have been living separately for 2 years or even 5 years, then options 4 and 5 are available.
There are further considerations that a solicitor will weigh up before submitting a petition on your behalf. The reason for opting for one petition over another could be emotional, tactical or even financial. A solicitor will be able to discuss this with you, and after hearing the circumstances of your case, will be able to give you clear advice as to which petition suits your circumstances the best.