Research released earlier this week shows that over half of divorce petitions lodged in England and Wales each year are based on behaviour.  In our experience, the examples of behaviour used are wide ranging but, as the research has found, not necessarily accurate or a true reflection of the circumstances. We are told that almost a third of those filing for divorce have admitted that the examples given were fabricated in order to proceed with their divorce as soon as possible.

The only ground for divorce in England and Wales is that the marriage has broken down irretrievably. In applying for a divorce, you have to prove this irretrievable breakdown on the basis of one of five facts:

  • Adultery - following which you find it intolerable to live with your partner;
  • Behaviour - following which you cannot reasonably be expected to live with your partner;
  • Two years’ separation and your partner consents to the petition on this basis;
  • Five years’ separation (no consent is needed); or
  • Desertion

The only way to start divorce proceedings immediately is to base your petition on one of the two fault-based grounds, either adultery or behaviour. 

Divorce petitions based on adultery require proof that the adultery has occurred and the easiest (including the quickest and most cost effective) way of doing this is by the respondent to the divorce petition admitting to the adultery having taken place.  If there is a risk that the respondent will not admit to this, we advise our clients to base their divorce petition on behaviour (which might include reference to the extramarital relationship) as the respondent does not need to agree to this and the behaviour and the fact that the petitioner cannot reasonably be expected to live with them does not need to be proved*.

In many cases, adultery is not applicable and the only way to proceed with a divorce immediately, therefore, is to refer to behaviour. 

The majority of the divorce petitions we draft are behaviour petitions and we regularly advise clients on the examples of behaviour they can include.  We suggest using between four and six examples, although these do not need to be extreme or serious unless you want them to be.

When discussing possible examples, many of our clients explain that they and their partner have grown apart or no longer share the same interests.  Unfortunately, although a common theme when discussing reasons for marriage breakdown, these are not sufficient for use in a behaviour petition. Instead, we have to help clients construct behaviour particulars which specifically state that one party is at fault and that their behaviour is the reason that the marriage has broken down irretrievably.  This can be difficult in cases where the parties have an amicable relationship and want it to remain so while the financial and children arrangements are also sorted out.  Even when parties have a good relationship, it is rarely easy for one spouse to have to read six examples accusing them of unreasonable behaviour and knowing that these will be seen by a Judge and each of the parties’ solicitors.  Some clients fear that their behaviour will impact on the outcome of any financial proceedings and time and fees can be wasted going back and forth to find examples of behaviour which both parties are content with.

In some cases, we help clients prepare fairly mild examples of behaviour, which they agree with their spouse before the divorce petition is lodged at court.  Unfortunately, however, we have had recent experience of these petitions being returned by the court with a request for clarification or further examples. As similar, milder, petitions have been allowed historically, we are concerned that the courts are in fact becoming stricter about the type of behaviour which can be included in the petition. In turn, it is more difficult for our clients to tailor their petitions to be as neutral as possible in situations where they are on good terms with their ex-partner and want the divorce and other negotiations to proceed as amicably and quickly as possible.

We look forward to Parliament’s response to the proposal brought yesterday by Conservative MP, Richard Bacon, for a change to family law to allow divorces to proceed on a no fault basis, which has been granted a 2nd reading in Parliament. We would certainly welcome the introduction of a no fault divorce, e.g. where each party agree, without attributing blame, that the marriage has broken down irretrievably as soon as they decide that they want to separate, rather than having to wait for the two or five year periods referred to above. This would go some way to relieving friction between the spouses and allowing them to concentrate on the important practical aspects of their separation, including their own well-being and that of any children involved.

*When petitions are not defended.