Article published on 16 May 2016

When one party has decided to start Divorce proceedings there can be a worry that if they do, their spouse will refuse to “sign the papers”. It is not uncommon when a relationship breaks down for one party to feel that the other will cause significant difficulties when a Divorce Petition is issued.

Whether this will be a major problem depends to a large extent on the basis for the divorce. The only ground for any divorce is that the marriage has broken down irretrievably. However, in addition the law requires you to prove that the marriage is at an end by citing one of five “facts”:

  • “Adultery” – this “fact” requires an admission of the adultery by the other party to proceed.  Without the admission, it is very difficult to prove, so this effectively requires agreement to proceed.
  • “Unreasonable behaviour” – this does not require agreement to proceed and in fact the allegations can be denied by the spouse and still proceed.
  • “2 years separation with consent” – this does require the other party to agree, so you cannot proceed if they will not sign.
  • “5 years separation” – this does not require agreement
  • “2 years desertion” – rarely used, but does not require agreement

Often when one party is leaving another, it is because some form of behaviour has occurred which makes them feel they can no longer live with that person or be in a marriage. “Unreasonable behaviour” is subjective and therefore a very wide range of behaviour can be cited in the Petition. This makes it far easier to use, as opposed to having to prove desertion or separation. This fact is the most commonly used.

If a Petition is pursued using one of the “facts” which does not require agreement and the other party refuses to engage in the process, there are several ways in which a court can still proceed with the divorce including, but not limited to, personal service of the papers by a Bailiff or Process Server.

Whenever a client voices their concern that their husband or wife will not deal properly with the proceedings, the first action is to discuss with them the behaviour or circumstances which led to the breakdown of their marriage, to ascertain the best facts to use. Clients are often relieved to hear this because if you have made the decision to leave your marriage, the thought of being unable to end it legally can be exasperating.

Similar principles apply to judicial separation proceedings and dissolution of a civil partnership.

If you have any queries surrounding Divorce or the breakdown of a relationship please contact Rebecca Ashton at our Bognor Regis Office on 01243 864001.

Rebecca Ashton (Chartered Legal Executive Lawyer)

Matrimonial Department