Q: My spouse and I have separated. Can we divorce on irreconcilable differences?
A: ‘Irreconcilable differences’ is not a term that we use. The ground for divorce is irretrievable breakdown of marriage, but that has to be proved in one of five ways as follows (known as the Facts):
- Your husband/wife’s adultery and that you find it intolerable to live with them.
- Your husband/wife has behaved in such a way that you cannot reasonably be expected to live with them.
- Your husband/wife has deserted you for a continuous period of at least two years prior to the issue of the Divorce Petition.
- You and your husband/wife have lived apart for a continuous period of at least two years and that the other party consents to the divorce.
- You lived apart from your husband/wife for a continuous period of at least five years prior to the issue of the Petition.
Q: My spouse is living with somebody else but he says that the relationship did not start until after we separated. Is this adultery?
A: Yes. Adultery is defined as voluntary sexual intercourse between a man and a woman who are not married to each other but one of whom at least is a married person. Adultery can take place after the parties have separated. This is because adultery is evidence that the marriage has irretrievably broken down.
Q: Can I name the other party?
A: It is not necessary to name the other party and indeed the court and the Family Proceedings Rules discourage naming the other party in the Petition generally. If the other person is named it can increase the costs as it will require service upon the other party and they will need to respond, which can prolong the process.
Q: What is unreasonable behaviour?
A: There is no standard definition of unreasonable behaviour and it is widely interpreted. It does not just include violent and threatening abusive behaviour.
Q: I have committed adultery and I want to start the divorce against my spouse. Can I do so?
A: Not on the grounds of adultery unless your spouse has also committed adultery. You cannot divorce somebody on your own adultery. Your spouse would have to commence the divorce proceedings against you, unless you had one of the other Facts, on which to base the divorce.
Q: I want to start to a divorce but I cannot afford to pay. Can I get legal aid?
A: In order to obtain legal aid for a divorce you would need a domestic abuse gateway with specific evidence that domestic abuse has taken place. The Legal Aid Agency (LAA) specifies what evidence is required and you can find this out from the LAA website. Even if you do not obtain legal aid it is still possible to apply to be exempt from the court fee, which is currently £410 by applying to the court. This does require very specific supporting evidence to obtain the exemption.
Q: I have been married nine months and I want to start a divorce. Is this possible?
A: No. You cannot start a divorce until you have been married for one year. You can however commence Judicial Separation proceedings which may be useful if you want to deal with financial matters within that year.
Questions about divorce
If you have any questions about anything relating to divorce and separation, our family lawyers based in Leicester, Hinckley and Market Harborough are happy to give you some free initial advice over the phone, before you decide whether you want to go ahead with anything.
Feel free to phone or pop in to talk to our solicitors.
Sarah Gill is a Family Lawyer at Bray & Bray Solicitors. You can contact Sarah on 01455 639900 or email firstname.lastname@example.org