Legal dramas and American television shows frequently show spouses filing for divorce on the basis of “irreconcilable differences” and this is a term known by many to equate with a blame free divorce. As such, many people wish to use this approach when seeking a divorce. However, this relates to the law in the USA and various other jurisdictions and is not reflective of the position in England and Wales.

Is irreconcilable differences a ground for divorce?

The law as set out in the Matrimonial Causes Act 1973 states that there is only one ground for divorce in England and Wales – the irretrievable breakdown of the marriage. This must be evidenced by one of five facts which are set out at s1(2)(a)-(e) of the Matrimonial Causes Act 1973 and are as follows:

1. the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent;
2. the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent (unreasonable behaviour);
3. the respondent has deserted the petitioner for a continuous period of at least 2 years immediately preceding the presentation of the petition (desertion);
4. the parties 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 (two years’ separation with consent); and
5. the parties have lived apart for a continuous period of at least five years immediately preceding the presentation of the petition (five years’ separation).

It is a common misconception that parties can simply petition on the grounds that they have “irreconcilable differences” but as set out above, this is not the case in England and Wales. Therefore if parties have not been separated for a period of two years or more then if they wish to proceed with divorce proceedings immediately, they are forced to partake in the “blame game” and petition on the basis of the other’s adultery or unreasonable behaviour.

However, there are a number of other myths that surround the grounds for divorce and the implications moving forward.

Many are reluctant to be the respondent in proceedings based upon their adultery or “unreasonable behaviour” as they are concerned that this will have a detrimental impact on their position in respect of the finances. However, whilst there is some relation between the two sets of proceedings (such as a financial application only being possible once a divorce petition is filed or Decree Nisi being required before the Court seals a Consent Order) they are completely separate legal proceedings. From June 2017 the two sets of proceedings were administratively de-linked in an attempt to reflect the clear divide between the two.

Adultery or unreasonable behaviour should have no real bearing on the outcome of any financial matters, unless the facts are such that the unreasonable behaviour has severely impacted on the finances (such as rendering the other party incapable of work etc). These cases are incredibly rare. Therefore, on the whole unreasonable behaviour or adultery do not equate to a financial punishment to the respondent.

In respect of adultery, the petitioner can only rely upon the respondent’s adultery (and not their own). Adultery is sexual intercourse with a party outside of the marriage and can be relied upon even if the adultery took place after a period of separation. Under the law, until the parties are divorced, such intimate relations with another person are deemed adultery (despite the fact that emotionally and morally this may not be considered “cheating” by the respondent). Some are shocked to learn that after deciding that the marriage has ended and separating, that their spouse is able to petition on the basis of them having formed a new relationship. Adultery is not available as a basis for divorce for infidelity between two people of the same sex, as this is not deemed adultery under the law.

Some people believe that both parties must consent to the divorce. This is only true in relation to divorce petitions based upon two years’ separation with consent. In respect of petitions based upon any of the other four grounds, there does not need to be consensus in order to obtain a divorce. However, it should be noted that failing to consent is not the same as defending the proceedings. In respect of unreasonable behaviour petitions, the respondent will often agree to the divorce but disagree with the particulars of unreasonable behaviour stated.

It is possible to defend divorce proceedings, although this can be very costly and lead to a much less amicable relationship between the two parties moving forward (and may not prevent a divorce from being granted). The 2017 case of Owens v Owens was one such case where the court determined that the particulars pled by Mrs Tini Owens did not meet the legal criteria and she was therefore denied a divorce when her husband defended the proceedings.

Whilst this case has been given permission to be appealed to the Supreme Court (and therefore this may not be the end of the matter), it does show that defending proceedings is an option in some (limited) circumstances to try to prevent a divorce.

Resolution is an organisation of family professionals. Resolution has been lobbying the government to make a change to the legislation in order to enable couples to have an option of a “no fault divorce” without having to assign blame before a period of two years’ separation. However, in the meantime it is possible to have an amicable divorce based upon adultery or unreasonable behaviour and members of Resolution sign up to a code of conduct that means that (save for limited circumstances) the respondent is provided with a draft Petition before it is filed with the court so that they may request amendments. Parties often agree the particulars of unreasonable behaviour before the Petition is filed and it is possible to keep everything civil and even friendly within this legal process.

So whilst “irreconcilable differences” is not currently a ground for divorce under the law in England and Wales, it is hoped that in the future changes to legislation will allow a no-blame ground for divorce before two years’ have passed. In the meantime Resolution members aim to assist clients by advising in relation to the irretrievable breakdown of marriages and the five facts that can be relied upon.

If you would like to discuss any of the points raised in this blog please contact me.

For more information on the services the Family team provide please visit our page “Family Law” on our website.