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The Five Facts for Obtaining a Divorce: Behaviour/Adultery

August 10th, 2018

The only way in England & Wales to obtain a divorce is to show that the marriage has irretrievably broken down (S1 Matrimonial Causes Act (MCA) 1973). Irretrievable breakdown is greater than simply ‘drifting apart’ i.e. not doing as much together, bickering or not going on dates.[1]

The irretrievable breakdown is supported by one of five facts, which are not necessarily the reason for the breakdown of the marriage, but nevertheless one of the five must be cited for a divorce petition to be considered by a Court. The same rules apply for a dissolution of a civil partnership (S44 Civil Partnership Act 2004). The five facts are as follows:

S1(2) MCA 1973

  • (a) that the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent;
  • (b) that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent;
  • (c) that the respondent has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petition;
  • (d) that the parties to the marriage have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition (hereafter in this Act referred to as “two years’ separation”) and the respondent consents to a decree being granted; 
  • (e) that the parties to the marriage have lived apart for a continuous period of at least five years immediately preceding the presentation of the petition (hereafter in this Act referred to as “five years’ separation”).

If the divorce/dissolution is not opposed by the Respondent (the party who receives, not completes, the petition) then the veracity of the statements relied upon as the fact causing the irretrievable breakdown will not be investigated by the Court. If contested, the Court has a duty to enquire (s1(3) MCA 1973).

Adultery

To petition for divorce based on a spouse’s adultery, there must have been consensual sexual intercourse with a person of the opposite sex who is not a party to the marriage.[2] Remarkably, adultery is not available for same-sex partners due to the, some would say, outdated requirement for the intercourse to involve vaginal penetration.

If the respondent in the divorce admits the adultery, they may be asked to sign a confession statement. Otherwise, a Judge may need to make a decision as to whether the petitioner has sufficiently proven that the respondent committed adultery i.e. by investigation of evidence such as text messages or emails etc. If a person is living with another partner, it will be presumed that the couple are having sexual intercourse and committing adultery.

Furthermore, to satisfy the requirements for divorce, the petitioner has to prove that they find it intolerable to live with the respondent. This part does not have to be due to the adultery,[3] but is undone if the petitioner continues to live with the respondent for six months following the last known incident of adultery (S2(1) MCA 1973). If they do, it is assumed that the marriage has not irretrievably broken down and the couple may not be granted a divorce.

Behaviour

The second fact proving the ground for divorce is referred to colloquially as ‘unreasonable behaviour’. This refers to the two requirements, being the respondent’s behaviour on its own and then that the petitioner accordingly cannot reasonably be expected to live with them.

The test for this is widely interpreted and the Court will take into account the individual petitioner, and what they subjectively find to be unreasonable behaviour. It can range widely from serious behaviour such as domestic violence to the less serious, such as a spouse demanding their feet be ticked every night for a prolonged period.[4]

However, some unreasonable behaviour cases are unsuccessful. For example, in one, a husband claiming his wife was not loving or affectionate was not sufficient[5], nor was a husband who did not engage in debates or arguments.[6] ‘Drifting apart’, unfortunately, is insufficient[7] as it does not establish any unreasonable behaviour. This is a disappointing part of the law and leads to petitions being exaggerated, leading to confrontation or damaging the subsequent relationship.

Similarly to the ground of adultery, a Court will consider petitions where the petitioner continues to live with the respondent following the behaviour but could refuse to grant the divorce.

Unfortunately, the law does not yet allow ‘amicable’ divorces, and therefore the majority of petitions fall under the unreasonable behaviour ground, which forces couples to identify fault in their former partners. Where many divorces could start out amiable, they are then pushed by the law into identifying and relying on negative points; even ‘bolstering’ these up in order to pass the threshold for behaviour to be deemed unreasonable.

The other three facts will be explored in a separate blog, but can allow for more amicable separations – although, only where the divorcing couple have been living separately for at least two years which is unusual in most cases. Overall, the law regarding divorces is far from perfect and does not assist couples to maintain good relationships following the breakdown of a marriage.

[1] Buffery v Buffery [1988] 2 FLR

[2] Dennis v Dennis [1955] P153, Redpath v Redpath [1950] 1 All ER 600

[3] Cleary v Cleary [1974] 1 WLR 73

[4] Lines v Lines [1963]

[5] Pheasant v Pheasant [1972] 1 ALL ER 587

[6] Le Brocq v Le Brocq [1964] 3 All ER 464

[7] Buffery v Buffery [1988] 2 FLR

 


 

Written by

Holly Mullen

PA

Having recently graduated with her first class honours degree in law from the University of Bedfordshire, Holly is keen to explore her interest in Family Law. She has previously volunteered with public legal advice services and hopes to eventually qualify as a family Solicitor. Holly joined Hawkins Family Law in August 2017.

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    enquiries@hawkinsfamilylaw.co.uk

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