Divorce: Where one party refuses
The only divorce ground in the UK which requires the agreement of the other party is 2 years separation. There are four other ‘fault based’ grounds which do not require consent. In most cases, it is therefore possible to secure a divorce without the other party’s agreement.
In the event that the other party is likely to contest the divorce, the most sensible and pragmatic way forwards is to commence the proceedings based upon their unreasonable behaviour. This obviously eliminates the need for consent. The threshold of behaviour applied by the Courts is also fairly low. It would therefore not be easy for the other party to challenge the divorce.
In the absence of any hard evidence, it would not be wise to commence the proceedings based upon the other party’s adultery. Should they choose to ignore your application, you would be left with the almost impossible task of trying to prove to the Court when and where the adultery took place. As the threshold of unreasonable behaviour applied by the Courts is fairly low, you would be unlikely to encounter the same evidential problem.
If you do not wish to commence the divorce based upon the other party’s unreasonable behaviour, the only option would be to apply for a divorce based upon 5 years separation (as and when this becomes relevant). Unlike divorces based upon 2 years separation, the consent of the other party is not needed in this instance. You only need to satisfy the Court that you have been living separately and apart for 5 years.
Should you require any advice or assistance with your divorce or with regard to your financial position following your separation, please do not hesitate to contact Ian Butterworth through this firm’s Family Department on 01202 636223.