Divorce:

You can't apply for a divorce until you've been married for at least one year. There are no exceptions to this rule. To get divorced the marriage must be recognised as valid by United Kingdom law and you must meet rules about how long you've been living in the country.

If you and your partner both agree to the divorce, this is called an undefended divorce. If one of you doesn't agree to the divorce, this is called a defended divorce.

Undefended divorce

An undefended divorce is dealt with in the Family Court. You can find details of your local Family Court on the GOV.UK website at www.gov.uk.

In an undefended divorce, you don't usually need to use a solicitor for the divorce procedure itself. However, it may be advisable to go to a solicitor for general advice before you apply for a divorce. A solicitor can be useful for advice on whether there are sufficient grounds, which grounds are appropriate and what evidence may be needed. If domestic violence is involved or if there are disputes about children, property or money which you and your partner can't resolve, it's usually advisable to consult a solicitor. If domestic violence is involved, you might get legal aid to pay for a solicitor.

Defended divorce

A defended divorce is dealt with in the Family Court. In a defended divorce, both partners should always consult a solicitor. When the case is heard, you will usually need to use a barrister as well. Legal fees can be very high if there are long disputes. It is advisable wherever possible for both partners to try to come to an agreement before going to court.

What do you have to prove to get a divorce

The court will grant a divorce if you or your partner can show that the marriage has permanently broken down. Legally, this is called an irretrievable breakdown of the marriage. For a marriage to have irretrievably broken down, one of the following things must be proved:

  • adultery
  • your partner has behaved unreasonably
  • your partner deserted you at least two years ago
  • you've lived apart for at least two years if you both agree to the divorce
  • you've lived apart for at least five years if one of you doesn’t agree to the divorce.

Adultery

A court may grant a divorce if one of you has had a sexual relationship with someone else of the opposite sex (committed adultery) and the other partner cannot bear to carry on living together. You can’t give adultery as a reason for divorce if you have lived with your spouse for six months after you found out about their adultery. A woman who is raped hasn't committed adultery but a man who commits rape has.

The court will need details of the adultery, for example, dates and places when it happened. The court will only grant the divorce if it's satisfied that adultery has occurred and that the other partner could no longer live with the partner who has committed adultery.

If you both agree to the divorce, the court will usually only need statements and details of the sexual relationship. If one of you doesn't agree to the divorce, proof will be necessary and this may be difficult and expensive to get.

Unreasonable behaviour

A court may grant a divorce if you or your partner has behaved so badly that the other can no longer bear living together. Unreasonable behaviour can include mental or physical cruelty, including violence or abuse, and less obvious things like dominating a partner, not letting the partner leave the house or speak to neighbours and friends or refusing to pay for housekeeping.

If one of you doesn't agree to the divorce, evidence and details will be needed, for example, evidence from witnesses such as friends or medical evidence.

If your partner has been violent towards you, you can get specialist help and legal aid may be available.

Desertion

Desertion means that your partner left home against your wishes with no good reason. If your partner was away continuously for two out of the last two and a half years, you can apply for a divorce without the agreement of your partner. If you live together for a total of up to six months during this period, this does not stop the desertion being continuous. A court will want proof of the desertion and, if one of you doesn't agree to the divorce, there may be disagreements about who deserted whom.

Living apart for two years

If you have lived apart (been separated) for two years continuously and you both agree to a divorce, a court will accept this as proof of irretrievable breakdown of the marriage. The two years apart will still be continuous even if you have actually lived together for up to six months in between.

 Living apart for five years

If you have lived apart (been separated) for five years continuously, you can apply for a divorce without your partner's agreement. Your partner can object to the divorce on the grounds that it would cause unreasonable hardship. However, a court will usually agree to a divorce as long as you've been separated for five years.

Applying for a divorce

The partner who is applying for the divorce is called the petitioner. The other partner is the respondent.

If you want to start divorce proceedings you will need to get the forms from the court. You can also get them from the Ministry of Justice website at www.justice.gov.uk.

You can also start the process online by using a newly introduced service through the government’s online portal at www.apply-divorce.service.gov.uk

The court office will tell you which forms you need, but court staff are not allowed to give legal advice to either partner or help you fill in the forms.

If you are applying for a divorce you can get general help from your local Citizens Advice Bureau. If you need more expert help about your divorce, you may need to get specialist advice, for example from a solicitor. Your CAB can help you find the right specialist advice. To search for details of your nearest CAB, including those that can give advice by e-mail, go to www.citizensadvice.org.uk.

Tom Togher

Salford Citizens Advice