Not all break-ups are amicable. If your marriage has broken down and you’re looking to get a divorce, do you necessarily need consent from your partner? We answer this question.
Divorce cannot only be a time-consuming and costly process, but it can be incredibly stressful too. A divorce is the closing of a significant chapter of your life and it might be one that you want over as quickly as possible so that you can move on with your life. But if you’re not on good terms with your partner or, for whatever reason, your partner won’t sign the papers, can you get a divorce without consent?
In this blog post, we look at what you can do.
The Grounds for Divorce
Before we look at divorce without consent, we first need to look at the grounds for divorce. In England and Wales, there is just one basic ground for divorce: that the marriage has irretrievably broken down. When issuing a divorce against your spouse, you need to prove one of five facts:
- Unreasonable behaviour
- Two years separation with consent
- Five years separation without consent
Out of these five instances, only one of them actually requires consent and the clue is in its name — two years separation with consent. Contrary to what you might think, you do not actually need consent from your spouse to divorce if you’re relying on any one of the other four facts.
The Process of Getting a Divorce without Consent
The process of getting divorced is largely administrative. After deciding the grounds on which you want the divorce, you’ll need to file a petition to the court. This form contains information about your marriage, as well as arrangements for any children you have.
“Unreasonable behaviour” is the most commonly cited reason for filing a divorce. Desertion and separation are surprisingly difficult to prove — unless a separation agreement is in place, though this is usually indicative of a more amicable split — and require waiting a long time. Likewise, infidelity can be hard to demonstrate, unless your spouse openly admits to it. Unreasonable behaviour covers a wide spectrum of actions and behaviours and is less about the magnitude of the behaviour than the effect it has on the petitioner (the individual filing the divorce). If the petitioner can demonstrate that they feel they can no longer reasonably live with that person or be married to them, this will suffice.
Once the petition has been filed, the court will issue the divorce papers, a copy of which will be sent to your spouse for them to sign. This is where it starts to get a bit more complicated in terms of divorcing without consent.
If your spouse does not defend the divorce, you can apply for a decree nisi. This is the middle stage of the divorce — you will still be married at this point — which says that the court sees no reason that you can’t divorce. After six weeks and one day, you can apply for a decree absolute, which formally ends the divorce.
But what if your spouse doesn’t consent? Is there anything you can do?
One of the more common situations for couples getting a divorce is that one party refuses to sign the acknowledgement when the divorce papers are sent. Again, applying for a decree nisi resolves this issue. Because you can apply for a decree nisi if your partner does not defend the divorce, if your spouse does not return the papers, but, likewise, does not actively dispute the divorce to the court, this is often reason enough for the court to look at the facts of the case and grant permission for the divorce to go forward.
If your spouse disputes or defends, the divorce, you can still apply for a decree nisi. However, you’ll have to attend a court hearing, where the judge will look at the case and make a decision.
Getting a divorce without consent can make the situation even more stressful — after all, nobody wants to feel that they have to stay married to their spouse. Fortunately, in all cases, the court will look at the facts and aim to resolve things quickly. Regardless of whether you need to attend a divorce hearing if you feel your partner may not consent to the divorce, get advice from a top divorce solicitor, who will be able to advise you and file all the necessary documents on your behalf.
The Benefits of an Amicable Divorce
There are many benefits to divorcing amicably. If there are children involved, staying on friendly terms with your ex can help ease making arrangements for their care, as well as lessen the impact of the transition on your children. Agreeing will also make the divorce process quicker and cheaper.
Of course, the process of getting a divorce is just that — when the decree absolute comes through, you legally won’t be married any longer. However, dividing the number of joint assets you and your partner accumulate over the course of a marriage, such as the marital home, joint bank accounts, etc., and deciding on the care of your children, need to be agreed separately. The majority of couples undergo mediation with the support of a solicitor to make arrangements and split assets fairly, however, the courts can get involved to make the agreement legally binding or to resolve the situation if, even after mediation, the couple cannot agree.
The benefit of remaining amicable is that you can reduce costs, stress, and back and forth while making suitable arrangements that satisfy both parties.
The Role of the Separation Agreement
A separation agreement is a document agreed by you and your spouse that sets out each of your rights and responsibilities while you’re living apart. Separation agreements are ideal for those who cannot get divorced for certain reasons (such as religion) or for those who are contemplating divorce, but want to trial a separation first to make sure it’s what they both want. You might think that a separation agreement is only suited to couples on good terms with each other — if you believe your spouse wouldn’t consent to a divorce, why would they sign a separation agreement? However, if your partner disputes the divorce because they’re not sure they want the marriage to end, a separation agreement will give you the freedom to move on with your life and can make a divorce easier and cheaper later down the line, if that’s something you or your spouse choose.
So while there are clear benefits to resolving a divorce amicably, unfortunately, it’s not always possible. Getting a divorce without consent is possible, but, like every relationship, every divorce is unique. We would always recommend hiring a divorce lawyer experienced in every nuance of family law. This becomes even more crucial where children are involved.
Are you looking to get a divorce without consent? We can help. KMJ Solicitors is a specialist family law firm fully versed in every aspect of divorce. Get in touch for your free, no-obligation consultation and find out how we can help you with your divorce.