Does Divorce Have to Be Mutual?
19 September 2019
To get a divorce in England or Wales, you need to prove to the Court that the marriage has irretrievably broken down, and cite the reason for this breakdown. Whether or not the divorce has to be mutually agreed will depend on the reason you give.
There are 5 legally recognised reasons for the irretrievable breakdown of a marriage. These are called the 'facts' for divorce, and these are:
- Unreasonable behaviour
- 2 years' separation (with consent)
- 5 years' separation
The Court will not grant a divorce without one of these reasons being given for the breakdown of the marriage. Some require the other person to consent to the divorce, while others do not.
To get a divorce on the basis of unreasonable behaviour, you must show that your spouse has acted in such a way that you can no longer be expected to live with them or to remain married to them.
These allegations may not necessarily be accepted/mutually agreed by your spouse, therefore there may not be a mutual agreement. However, the divorce can still proceed on this basis without mutual agreement if you can provide sufficient evidence to show how the unreasonable behaviour caused the marriage to break down.
To get divorced on the basis of adultery, you must prove to the Court that your spouse has committed adultery and you can no longer be expected to live with them. This can be proven through written admission from your spouse or sufficient evidence that sexual intercourse has taken place with someone else during your marriage. You can't initiate divorce proceedings based on your own adultery.
When citing adultery as the reason for the divorce, this generally requires mutual agreement. This is because it's difficult to prove adultery, so a written admission by your spouse is usually required.
2 Years' Separation
To get divorced on this basis, both people must agree that they have been living separate lives for at least 2 years immediately before the divorce petition was sent to Court.
Both people must also agree to the divorce, so mutual consent is needed in this instance.
5 Years' Separation
In order to cite this as the reason for divorce, the couple must have been living separate lives for at least 5 years immediately before the divorce petition is sent to the Court.
In this situation, your spouse does not need to provide their consent to the divorce. Therefore, mutual agreement is not necessary.
To divorce on the basis of desertion, your spouse must have deserted you for a continuous period of at least 2 years. Desertion is very difficult to prove and therefore is rarely used. Technically mutual consent is not required to divorce on this basis, as once one person has deserted the other, there is no mutual agreement.
Contested and Uncontested Divorce
If both people agree to a divorce this is known as an uncontested/mutual divorce. If one person disagrees with the divorce and refuses to sign the divorce papers this is known as a contested/defended divorce.
Contested divorces are often complex, costly and time consuming. In order for a divorce to proceed swiftly through the Court both people should mutually agree to the divorce taking place.
However, if one person does not wish to comply with divorce proceedings and refuses to respond to the divorce petition, there are options available.
Serving Divorce Papers
One option is to have the divorce paperwork 'served' to the respondent.
Once the divorce petition has been submitted by the petitioner (the person initiating the divorce) it will be issued by the Court, and a copy will be sent to the respondent (their spouse).
If at that point it becomes known that the respondent does not agree to the divorce, the petitioner can have the divorce paperwork served to the respondent by a Process Server. This means the Process Server will deliver the paperwork to them in person.
A statement will then be drafted by the Process Server to show that the respondent has been served with the divorce papers but is choosing not to cooperate. This statement will be sent to the Court so that the petitioner can proceed with the divorce.
So, in some cases it's still possible to get a divorce without mutual consent even if the reason requires it. Overall if one party can prove to the Court that the marriage has irretrievably broken down then the divorce does not necessarily have to be mutually agreed.