The divorce law of England and Wales was passed in 1969. Although considered to be forward thinking in its time, it is now somewhat outdated. The Family Law Reform Act 1996 (passed with cross party support in both Houses of Parliament) enacted a new law to replace the current divorce legislation. It provided for a more civilised and less adversarial procedure for dissolving a marriage (“no fault divorce”). Despite that, it has not been brought into force and plans to do so have been shelved.
Divorce proceedings are started by one spouse filing a divorce petition at Court. The spouse seeking a divorce is called the Petitioner and the other spouse is called the Respondent. Currently the law only provides one basis for divorce namely “that the marriage has broken down irretrievably”. There is no such thing as “irreconcilable differences” in English law.
To prove irretrievable breakdown the Petitioner must establish of one or more of the following “facts”:-
- that the Respondent has committed adultery and the Petitioner finds it intolerable to live with the Respondent (adultery);
- that the Respondent has behaved in such a way that the Petitioner cannot reasonably be expected to live with the Respondent (unreasonable behaviour);
- that the Respondent has deserted the Petitioner for a continuous period of at least 2 years immediately preceding the presentation of the petition (desertion);
- that the parties to the marriage have lived apart for a continuous period of at least 2 years immediately preceding the presentation of the petition and the Respondent consents to a decree being granted (2 years separation by consent);
- that the parties to the marriage have lived apart for a continuous period of at least 5 years immediately preceding the presentation of the petition (5 years separation).
The vast majority of divorces are based on the “facts” of either adultery or unreasonable behaviour. This is because the other three options require periods of separation of at least two years and most couples do not wish to wait. The vast majority of divorces are undefended. This is because who divorces whom and the “fact” by which irretrievable breakdown is proved have little bearing on how the other issues arising on a divorce (over finances and children) are resolved.
An undefended divorce takes approximately 3-4 months from the date of filing of the petition to the pronouncement of decree nisi. The Petitioner then has to wait a minimum of 6 weeks before he or she can apply for the decree absolute. It is the decree absolute which formally dissolves the marriage. The procedure in an undefended divorce does not require the couple to attend court in person, any evidence being given in the form of a sworn statement. It is this procedure that is sometimes referred to as obtaining a “quickie” divorce.
In many cases, there is no legal or procedural reason why the decree absolute cannot be obtained on the first available opportunity. However, in some cases, as a practical step, the obtaining of decree absolute is deferred until the couple have resolved the financial issues. This means that the couple retain the benefits that they would each receive on the death of the other, for example under a pension or life insurance policy, pending an overall Resolution of financial issues.