Divorce and dissolution of civil partnership

Procedures:
if both parties agree to divorce, the divorce petition is flled in, the respondent fles an
acknowledgement of service and then the petitioner signs a statement confrming the
consents of the petition. If everything is in order, the judge will allow the decree to go
ahead and there is no need for the parties to go to court.
Bar on petition s !"#
# petition cannot present a petition within one year of marriage but the petitioner can rely
on matters that occurred during the frst year of marriage in the petition such as any
evidence of adultery or unreasonable behavior. $his is an absolute bar that there is no
discretion to waive or reduce the time limit.
%round for divorce or dissolution
$he ground for divorce is that the marriage has broken down irretrievably as
set out in s&'&( !"#. It must be proved by one of fve facts.
$he ground for dissolution of civil partnership is set out in s))'&( "P#. It must
be proved by four of fve facts.
*owever, one of the facts alone is not enough. +ne of the facts must e,ist
and there must be irretrievable breakdown 'Bu-ery v Bu-ery(

&. #dultery
.&'/('a(: the resp has committed adultery and the petitioner fnds it intolerable to live
with the rep
#dultery
01ennis
2#dultery is a voluntary act of se,ual intercourse between the husband
or wife and a third party of the opposite se,3
Intercourse must be between a man and woman. .o homose,ual
intercourse and non4penetrative se, would not count.
It must be voluntary, so a person who is raped would not be
committed adultery '5edpath v 5edpath(
Intolerable to live together
$he re6uirement of adultery and intolerability are separate and do not
have to be linked '"leary v "leary(, but it may well be the adultery
which makes living with the resp intolerable.
Intolerability is subjective: 7hether this particular petitioner fnds it
intolerable to live with this particular resp '0%oodrich v %oodrich( in
other words, it depends on the petitioner3s view of the matter.

&. Behaviour
.&'/('b(: the resp has behaved in such a way that the pe cannot reasonably be e,pected
to live with the resp
Behaviour
7hether the resp3s behavior is such that it is unreasonable for the pet
to continue living with the resp, not whether the behavior is
unreasonable. $he "+# held: behavior can take the form of an act or
an omission.
$he test has objective and subjective elements.
In #sh v #sh, Bagnall 8 stated that 2can this petitioner, with his or her
character and personality, with his or her faults and other attributes,
good and bad, and having regard to his or her behavior during the
marriage reasonably be e,pected to live with the resp9
1unn 8 e,plained in :ivingstone4.tallard v :ivingstone4.tallard that the
6uestion was 2would any right4thinking3 person come to the conclusion that
this husband has behaved in such a way that this wife cannot reasonably be
e,pected to live with him, taking into account the whole of the circumstances
and personalities of the parties.
It is objective in that the curt must decide whether the Pe can rea be
e,pected to live with the 5esp, but the essence of .&'/('b( is
subjective in its focus on the parties concerned.

Behavoir includes: physical violence 'Bergin v Bergin(, criticism,
disapproval and boorish behavior ':ivingstone(, a collection of trivial
acts '+3;eill v +3;eill( and negative behavior such as prolonged
silences and periods of inactivity '$hurlow v $hurlow(
$here must be some behavior from which the court can conclude that
the pe cannot reasonably be e,pected to live with the resp, and more
than a mere drifting apart of the parties. 0Bu-ery v Bu-ery, a decree
was denied where the wife alleged that her husband was insensitive
and never took her out, and that they had nothing to talk about and
nothing in common after their children had grown up and left home.

Behavious does not suggest the resp is blameworthy. $he pe can still
establish behavior where the resp3s behavior is caused by illness. $he
court will consider 2all the obligations of the married state3 including
the duty to accept and share burdens on the family resulting from the
illness. *owever, the court will also consider the impact on the
petitioner and make a judgement about whether the behavior is
enough to allow the petition '$hurlow v $hurlow(
$he petitioner cannot rely on the resp3s behavior where his or her own
has been the same. In #sh v #sh, a violent petitioner could reasonably
be e,pected to live with a violent resp
;ot all the behavior is enough. Pheasant v Pheasant, the court refused
to accept that the wife3s failure to give the husband spontaneous,
demonstrative a-ection fulflled the test.
<-ect on the petitioner
$he focus is not the gravity of behavior per se but on its impact
on the petitioner. In :ivingstone, an accumulation of trivial
incidents may su=ce. 1unn 8 held: the wife 2was subjected to a
constant atmosphere of criticism, disapproval and boorish
behavior on the part of her husband3
# conviction for a serious criminal o-ence would undoubtedly
give the pe the facts on which to base a petition, but minor
acts of violence might re6uire more than one incident to satisfy
the court.
Behavior such as drunkenness, alcoholism and drug addiction
are fre6uently relied on by pe.
"ausing fnancial di=culties can constitute unre bahaviour as in
"arter4>ea v "arter4>ea
>ailure to fnish 21I?3 jobs over a long period as in +3;eill v
+3;eill.

.till living together9

If the parties have lived together for a period or periods totaling si, months
or more the court will consider whether the pe has proved that it is not
reasonable to e,pect her to live with the resp 'Bradley v Bradley: the wife
had nowhere else to go(

&. 1esertion
/. :iving #part@/ years
. :iving #part44A years