What is the irretrievable breakdown of marriage?
Prior to April 2022, the law required a person seeking a divorce to satisfy the Court that the legal test of irretrievable breakdown of marriage was met and caused by citing in the divorce petition one or more of the following five “facts”:
- adultery
- behaviour
- desertion
- 2 years separation with consent
- 5 years separation without consent.
Following the introduction of no-fault divorce, it is now possible to divorce on the ground of the irretrievable breakdown of marriage only. All that is required now is a Statement of Irretrievable Breakdown of marriage declaring that the marriage has irretrievably broken down. No other evidence is required.
The intention behind no fault divorce law is to make the decision to divorce a considered one, and that requiring separating couples to apportion blame served no purpose and usually made an ongoing conflict worse, and often led to poorer outcomes for children.
Under no fault divorce a 20-week cooling off period has been introduced before a couple can move on to the next stage of the divorce. The purpose of the 20-week period is to act as a “safety valve” and give a couple the time to reflect on whether the marriage can be saved and whether there is the opportunity to effect a reconciliation.
Does irretrievable breakdown apply to civil partnerships?
The concept of irretrievable breakdown of marriage applies equally to civil partnerships as it does to marriages.
How do you define the irretrievable breakdown of the marriage?
According to the Cambridge Dictionary, irretrievable means “impossible to correct or return to a previously existing situation or condition”.
An irretrievable breakdown of marriage can therefore be defined as a situation in which one or both the parties no longer wish to live together, and the relationship is damaged to the point that it cannot be repaired, and that continuing with the marriage will only cause further loss and damage to the parties.
It is a marriage with no hope of reconciliation no matter how much therapy and/or counselling a couple receives.
In a recent Supreme Court of India case the definition of “irretrievably broken down” was defined as “…. the marriage must be totally unworkable, emotionally dead and beyond salvation”.
What can cause an irretrievable breakdown of marriage?
Issues that could cause a marriage to irretrievably break down include: extra-marital affairs, lack of sexual intimacy, financial problems, loss of trust, being separated, inability to communicate, violent or abusive behaviour, growing apart due to different goals and interests, different political or religious beliefs. An irretrievable breakdown of marriage can still include any of the situations which made up the old grounds for divorce and can also include more vague issues.
How is the irretrievable breakdown of marriage proven?
It is proven by simply signing the Statement of Irretrievable Breakdown in the application for divorce or dissolution. No other facts or information is required to prove the irretrievable breakdown of marriage under no fault divorce law. The signed statement is sufficient evidence to confirm the marriage has irretrievably broken down.
What is a Statement of irretrievable breakdown?
This is a statement made by one or both spouses in the application for divorce or dissolution that the marriage has irretrievably broken down. It is taken as conclusive evidence of the fact that the marriage or civil partnership has irretrievably broken down. No other details are required.
Why was the sole ground of irretrievable breakdown of marriage introduced?
Divorce law modernisation has been on the agenda for many years. As far back as 1996, the government at the time first attempted to introduce the concept of no-fault divorce (in Part II of the Family Law Act). However, those provisions were never enacted due to lobbying from sections of the media and religious groups, and that part of the Act was later repealed.
The case of Owens v Owens intensified the argument for divorce reform and, in particular, no-fault divorce after the Supreme Court dismissed the wife’s appeal of a lower court’s refusal to grant her a Decree Nisi following the husband’s defence of her Divorce Petition where he disputed the 27 allegations of his “unreasonable behaviour”.
The wife’s divorce petition had previously been rejected by the High court and the Court of Appeal, where she was told that her husband’s behaviour was “to be expected in a marriage” and that “parliament has decreed that it is not a ground for divorce that you find yourself in a wretchedly unhappy marriage”.
Lord Wilson in the Supreme Court said “there was no denying that Mrs Owens’ appeal generates uneasy feelings’…. Parliament may wish to consider whether to replace a law which denies to Mrs Owens any present entitlement to a divorce in the above”.
This led to Baroness Butler Sloss introducing a Private Members Bill in the House of Lords inviting the Lord Chancellor to review the law of divorce and in particular the fault-based element.
In spring 2019 David Gauke, a government minister, announced that legislation would be introduced to remove fault-based divorce so that spouses could move on constructively by removing the requirement of allegations of blame or fault. The result was the Divorce, Dissolution and Separation Act 2020 which gained Royal Assent in June 2020, and came into effect on 6 April 2022 and introduced no fault divorce. The Act introduced the ‘irretrievable breakdown of marriage’ as the sole ground for divorce.
What is the process to obtain a divorce or dissolution?
To initiate divorce or dissolution proceedings, you must have been married or in a civil partnership for at least one year. It does not matter where in the world you were married, but you can only apply for a divorce in England and Wales if either you or your spouse meet certain residence conditions or live in England or Wales.
The only ground for divorce is the irretrievable breakdown of marriage.
The divorce process is as follows:
- Submit an application for divorce. This can now be done as a sole application or joint application.
- Where the application is a sole application, there will be service of the divorce documents on the other party.
- The other party is invited to respond and can only object to the divorce if there is a legal reason to do so.
- After 20 weeks the Conditional Order can be applied for. This means the Court agrees you can have a divorce, but it is not finalised.
- After a minimum of 6 weeks and 1 day you can apply for the Final Order.
- Once the Final Order is granted, this brings the marriage or civil partnership to an end.
The time limit for the process can be anything from a minimum of 6 months onwards depending on child or financial issues. It is important to remember that child arrangements and financial arrangements have separate procedures.
What are the requirements for a divorce?
- You must have been married for 1 year or longer.
- One of the parties to the divorce must be living in England or Wales.
- Either individually or jointly you must confirm the breakdown of marriage.
- The marriage certificate or a certified copy.
- A court fee of £593. If you are on a low income or benefits, you may receive an exemption.
What if I don’t want a divorce?
No fault divorce takes away the ability to oppose a divorce and any disagreement is irrelevant. It is effectively saying that it takes two to remain in a marriage.
As the only ground for divorce now is the irretrievable breakdown of marriage, it does not matter whether you challenge or disagree with the application for divorce. No other facts have a bearing on the divorce process or outcome.
Stopping your spouse from proceeding with a divorce or dissolution is difficult. Contesting a divorce today is far more difficult than was previously the case. Under no fault divorce you can only dispute the divorce if you have a legal reason. These include:
Jurisdiction – if you of your partner live in another country, the courts in England and Wales may not be able to handle your application.
If you can prove that the marriage or civil partnership was never valid. For example, if the marriage/civil partnership was not conducted in accordance with the laws of the country in which you married, meaning you did not enter a legally legitimate marriage/civil partnership.
If the marriage/civil partnership has already legally ended. For example, if you’ve already gone through divorce proceedings in another country.
If any of the reasons for contesting a divorce apply, you will need to file a response to the application explaining your reason for disputing the proceedings.
Other popular questions and answers
My spouse has been having an affair, can I divorce them for adultery?
It is no longer necessary to prove fault or any specific reason if you wish to divorce your spouse. As long as you have been married for 12 months or longer and you believe the marriage has irretrievably broken down, you are entitled to start divorce proceedings.
Is desertion now irrelevant in divorce?
Under no fault divorce, desertion is no longer relevant. The cause for the irretrievable breakdown of marriage may however be that one spouse abandoned, or deserted the other. The date of one spouse leaving the marriage may be relevant in the financial matters arising from the divorce to identify matrimonial and non-matrimonial assets.
What are irretrievable differences in divorce?
Irretrievable differences can be any reasons you consider for the irretrievable breakdown of marriage. Here is a helpful video: 6 Signs Your Relationship Is Over
How many years do you have to be separated to be divorced in UK?
Separation is no longer a requirement for a divorce or dissolution. As long as you have been married for at least one year and one of you lives or has lived in England and Wales, you can divorce.
What is the 12-month rule in divorce?
The 12-month rule is a requirement that couples must be married for at least 12 months before they can apply for a divorce. The rule also applies to the dissolution of a civil partnership.
The 12-month period starts from the date of the marriage or civil partnership.
What are my options for ending my marriage within 12 months?
For a divorce or dissolution of a civil partnership you must wait at least 12 months before being able to commence proceedings to end the relationship. Whilst you cannot get a divorce or dissolution, there are some alternatives available within the 12 months:
- If you believe your marriage was not legally valid, you may be able to obtain an annulment on the grounds it is a void marriage.
- Alternatively, you could claim the marriage is a voidable marriage if certain conditions are met such as the marriage was not consummated, or the wife was pregnant by another man at the time of marriage.
- You can enter into a Separation Agreement, which lets you and your partner agree on separation details in preparation for divorce or dissolution.