Am I Really Allowed to Get a Divorce?
Divorce is often the only option for couples who feel their marriage has irretrievably broken down. But once you’ve made this huge decision, you may find you’re not necessarily allowed to divorce, at least not straight away. So what does the law say about who can get divorced and when?
Firstly, you’re able to get a divorce in England or Wales if you’ve been married for at least a year. The marriage must also be legally recognised in the UK, and in most cases, you must have a permanent home in England or Wales.
Next, you must be able to prove that your marriage has irretrievably broken down for at least one of the following reasons; which are commonly known as grounds for divorce.
For initial advice please get in touch with our Divorce Solicitors.
In legal terms, this means your husband had sexual intercourse with someone of the opposite sex. This is an important point for same-sex couples looking to cite this as a ground for divorce. Furthermore, adultery can’t be given as a reason if you’ve lived together as a couple for six months after you discovered your partner’s adultery.
While unreasonable behaviour is a subjective term, ultimately it means the person applying for divorce must prove their spouse’s conduct has made them intolerable to live with. This can include anything from not sharing childcare or regularly arguing to refusing to pay for housekeeping. Such allegations don’t have be serious or extreme, and the Courts are likely to accept them at face value.
You can apply for divorce if your spouse has left you without a good reason and without your agreement. However, there are restrictions with this ground for divorce. The period of desertion must be at least two years in the past two-and-a-half years. Desertion can still be cited as a ground for divorce if you have lived together for up to six months in total during this period.
Separated for at Least 2 Years, with Agreement
You’re allowed to apply for a divorce if you’ve been separated for more than two years, although both of you must agree in writing. The law says you can still be separated even if you still live in the same house, as long as you’re not doing things together as a couple, such as eating and sleeping.
Separated for at Least 5 Years, without Agreement
You can apply for a divorce if you’ve been separated from your spouse for five years or more. In this instance, you don’t need the agreement of your husband and wife.
You’ll notice that the grounds for divorce that aren’t time-sensitive rely on blaming your partner for particular actions or inactions. This has proved argumentative, as some couples want to divorce amicably without assigning blame, and are unwilling to wait several years as it means they can’t move on in the meantime.
The UK government has acknowledged this is a problem, and proposed making “the irretrievable breakdown of a marriage” the sole grounds for a divorce, thereby taking away the need to live apart or providing evidence of a partner's misconduct.
In 2018, Justice Secretary David Gauke said, “We think that the blame game that currently exists helps nobody – it creates unnecessary antagonism and anxiety at an already trying time for couples. In particular, where there are children involved it's very important that we do everything to ensure that the future relationship between the divorcing couple is as harmonious as possible.”
While there’s no set date for when revised laws may be introduced, it does seem to be only a matter of time before no-fault divorce is eventually introduced in England and Wales.
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