Wednesday, 15 February 2017

The Key to Divorce

By now you will know about the wife who was yesterday appealing against a judge's refusal to grant her a divorce on the ground of her husband's alleged unreasonable behaviour. The appeal court's judgment will be given at a later date.

There can be no divorce under the law of England and Wales unless the party who brings proceedings has grounds which they have to prove and so it is with same-sex marriages as well. Dissolution is a civil partnership's version of divorce and this works in a similar way.

The opposite-sex divorce grounds are adultery - the other party's, not your own - unreasonable behaviour, the other party's desertion lasting for at least two years or a period of separation which can be two years if the other party agrees to the divorce or otherwise five years.

If a divorce is denied in yesterday's case, then is the wife locked into the marriage for ever? Unless she has some other ground against the husband she would have to wait for five years to elapse from separation. The husband could only then scupper a divorce if he could satisfy the court that divorce would result in grave financial or other hardship to him and it would be wrong to end the marriage. This is a notoriously difficult defence to succeed with.

Separation whether for two years or five years can be a successful ground even where separation has taken place under the same roof - the parties have continued to live in the same home but effectively as separate households. No sex, no eating together, no socialising together etc. 

For much more and the pros and cons of which ground to rely on, see Breaking Law at chapter 48.