One – The grounds for divorce
There is only one ground for divorce in England and Wales; that the marriage has irretrievably broken down for one of the following reasons:
- Unreasonable behaviour
- Separation of two years (with consent)
- Separation of five years (without consent)
The person who has the divorce papers served upon them (known as the defendant) can choose to defend the divorce. Although this is rare, the case of Owens v Owens  UKSC 41,  All ER (D) 144 (Jul) showed that if a party does choose to defend a divorce, the examples of unreasonable behaviour must show that the person who has filed for divorce (known as the petitioner) cannot reasonably be expected to carry on being married to their spouse.
Cases of adultery can prove even more problematic if the defendant chooses to deny the allegations. The burden of proof is on the petitioner to prove adultery was committed. Generally, it is not possible to provide direct evidence of adultery. Where there is no admission, circumstantial evidence may have to be relied on. The court will require evidence not just of an opportunity to commit adultery, but also of an inclination or passion to commit it. Even then, the court is not bound to accept adultery took place.
Two – Divorces are now processed through divorce centres
Divorce petitions and financial remedy applications are now dealt with through an established network of 11 centralised divorce centres throughout England and Wales. The vast majority of undefended divorce petitions will be dealt with by a legal advisor rather than a judge. However, financial orders will be considered by a County Court Judge.
Although created in 2015 to speed up the divorce process by taking the burden of divorce matters off County Courts, the reality is many divorce centres are struggling to keep up with their workload, and it can take up to six months to reach the decree nisi stage.
Three – You are encouraged to work out financial matters and arrangements for children between yourselves
The family law system in England and Wales is designed to help couples work out details of any financial settlement and arrangements for children amicably between themselves, rather than going to court.
Studies have shown that couples who are empowered to make decisions about their financial future and their children without the involvement of the court create workable solutions which are more likely to stick in the long-term.
Good family law solicitors will work hard to keep their clients out of court. If a dispute develops, methods such as round-table negotiation and mediation can be used to help couples resolve matters in a non-confrontational way.
Four – Sometimes going to court is inevitable
Despite the best efforts of everyone involved, sometimes matters regarding children and/or financial settlements can only be settled through a court order. For example, if there has been domestic violence in the relationship, or one party is hiding assets, or mediation and negotiation do not lead to a settlement, court is often the only option.
If this is the case, your solicitor and counsel will support you through the process. Prior to attending court, with a few exceptions, all couples must attend a Mediation Information and Assessment Meeting (MIAM), to establish whether mediation will be beneficial to helping them resolve their dispute.
Five – The court will consider several factors if it is required to make a financial order
If a couple goes to court to seek a financial order, the court will follow a checklist set out under section 25 of the matrimonial Causes Act 1973. It will consider the following factors when working out how to apportion matrimonial property and make provisions for spousal maintenance:
The income and future earning potential of the parties
- The age of the parties and the duration of the marriage
- The financial needs and obligations of each party, both at present and in the future
- The standard of living enjoyed by the parties during the marriage
- The contribution each party has made and will make in the foreseeable future to the welfare of the family
- The conduct of the parties (but only where it would be inequitable to ignore it)
- Any physical or mental disabilities suffered by a party or family member
- Any benefits, such as a pension, one party would lose as a result of the divorce
There is no hierarchy to these factors; in each individual case, different factors will carry different weight. A clean break and a 50/50 split of assets is only a starting point. If one or more of these factors means one spouse should receive more of the financial pie, then the court has the discretion to make such an award as it thinks fit.
Divorce is a minefield of confusion, especially because most people never believe it could happen to them. Your greatest ally and support is your divorce lawyer, who will explain all your options to you and ensure your best interests and the best interests of your children are protected.
Please note, this article does not constitute legal advice.
Guillaumes LLP Solicitors is a full-service law firm based in Weybridge, Surrey. We have a highly experienced family law team who can assist you with all matters relating to divorce. To make an appointment, please call us on 01932 840 111.