When a marriage or civil partnership breaks down, those involved can seek a divorce or dissolution respectively. While a civil partnership is very similar to marriage, there is a difference when it comes to ending the legal relationship.
Facts for ending a divorce or civil partnership
If you wish to obtain a divorce or dissolution of a civil partnership, you will need to demonstrate to the court that your relationship has irretrievably broken down. In respect of a marriage, there are five facts that the court will accept as evidence of this, as follows:
- Adultery – a sexual relationship with someone of the opposite sex (who is not your spouse)
- Unreasonable behaviour – which can include disagreements, failure to communicate or more serious issues such as mental or physical abuse.
- Desertion – where your spouse has left you without your agreement and has been gone for at least two years out of the previous two and a half years.
- Separation for two years – where both you and your spouse agree to end the marriage.
- Separation for five years – where only one of you needs to agree to end the marriage.
In respect of a civil partnership or same sex marriage, a sexual relationship outside of the civil partnership or marriage with a partner of the same sex is not accepted as evidence of irretrievable breakdown of a relationship by way of adultery. This is because the law currently defines adultery as intercourse between two people of the opposite sex who are not married/in a civil partnership.
Adultery could therefore only be used as evidence of irretrievable breakdown of a same sex marriage or civil partnership where the third party was of the opposite sex.
In reality, if someone in a same sex marriage or civil partnership has a relationship with a third party, this would generally be sufficient to persuade the court of irretrievable breakdown on the grounds of unreasonable behaviour.
Changes to the law
On 6 April 2022, a new law is set to come into effect which will radically change divorce and dissolution rules, making them more fit for the modern age.
Criticisms of the current regulations, as well as the anomaly relating to adultery, include the fact that obtaining a divorce or dissolution currently often requires an element of blame to be apportioned by one party to the other. This is generally considered to be unhelpful to a relationship, with one party needing to put in writing and submitting to court, issues such as their spouse’s behaviour or infidelity.
The new law, the Divorce, Dissolution and Separation Act 2020, seeks to make the process of ending the legal aspect of a relationship easier and less contentious.
Sometimes referred to as ‘no-fault’, the new rules do not require either party to establish fault on the part of the other. Instead, there is the option to make a statement of irretrievable breakdown. This statement can be made by one party or by both parties jointly.
Even if one party does not wish to divorce or end a civil partnership, they will not be able to contest it. A statement of irretrievable breakdown will be considered sufficient evidence and on this basis the court will grant a conditional divorce order or dissolution order. This will be granted 20 weeks after the start of the divorce or dissolution proceedings. After a further six weeks, a final divorce order or final dissolution order will be granted. These replace the previous divorce orders of decree nisi and decree absolute, with the aim of making the process easier to understand.
Should I wait and have a ‘no-fault’ divorce or dissolution?
The impending changes mean that couples may be wondering if there are any advantages to waiting for the new Act to take effect so that they can go through their divorce or dissolution without having to set out the issues that have caused the breakdown of their relationship.
In reality, for most couples waiting will not be necessary, unless there is a risk that the divorce will be contested.
Although the current process may require the apportionment of blame, many solicitors will work to reduce the acrimony in divorce or dissolution proceedings. At Lewis Denley, our family lawyers always work to resolve issues amicably and without the need for litigation. We are skilled negotiators and will enter into correspondence with the other party and their solicitors to try and reach agreement. Where this is not possible, we support our clients through mediation, which is often a successful way of helping those involved to resolve issues without recourse to the courts.
If you are considering divorce or dissolution of a civil partnership, it is highly recommended that you speak to an experienced family lawyer who will be able to discuss your options with you and advise you in the light of your particular circumstances.
To find out more about how we are able to help, see our page on divorce and civil partnership dissolution services.
Divorce proceedings and civil partnership dissolution proceedings
If you have decided that you want to go ahead with a divorce or civil partnership dissolution, then you will need to have been married or in the civil partnership for at least a year before you start court proceedings.
It is always best if you can resolve issues between yourselves, including financial arrangements and arrangements for children. If you are only able to agree on some points, this is a start and your legal representatives will be able to help you build on these until all of the matters in the debate are resolved.
You may be advised to wait until these matters are resolved before you deal with the actual divorce or dissolution. It can be strategically important to deal with issues in the right order, so it is advisable to seek legal advice before you ask the court for a divorce or dissolution.
Book a free 30-minute consultation with our divorce lawyer
Our divorce solicitors in Horsham aim to make the divorce process as easy and stress-free as possible. We offer a free 30-minute consultation over the phone or via videoconference to discuss your situation and how we can help.
In most cases, we are able to handle all aspects of divorce, including financial settlements and arrangements for children, without the need for court proceedings. This is generally a faster and more cost-effective way of resolving issues and can help prevent a relationship from deteriorating. However, should court proceedings need to be issued, we will be robust in dealing with your matter at court.
To arrange your free 30-minute consultation, please contact Marwa Hadi-Barnes today.
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