Family and matrimony
In England and Wales, you can only divorce if you have been married for at least one year. There is only one basic ground for divorce: the irretrievable breakdown of the marriage. You can prove irretrievable breakdown by establishing one or more of the following 'facts' for divorce:

Fact A. Adultery

You must prove that, either through actual admission or through sufficient circumstantial evidence, your spouse has had sexual intercourse with another person of the opposite sex and that you find it intolerable to live with your spouse. If a sexual liaison short of sexual intercourse has taken place, it's suggested that the unreasonable behaviour ground is used.

You can name the other person involved as a co-respondent but this isn't essential and can have serious consequences. Doing so can make the divorce proceedings more acrimonious, more complicated and more drawn out. It's, therefore, usually best to avoid naming a co-respondent. If you wish to name the other person in your divorce proceedings, you should take legal advice before doing so.

Adultery can be used as the basis for a divorce petition, whether you and your spouse are still living together or there has been a separation, but, in either case, not more than six months must have elapsed since you became aware of the adultery before the divorce petition is sent to the court.

Fact B. Unreasonable behaviour

You must show that your spouse has behaved in such a way that you cannot reasonably be expected to live with them. Unreasonable behaviour is now the most common fact on which to prove the ground for divorce in England and Wales. In an unreasonable behaviour divorce petition, the petitioner sets out a number of allegations against the respondent.

These allegations might include references to excessive drinking or financial extravagance, for example; but it's worth bearing in mind that the court doesn't insist on really severe allegations of unreasonable behaviour in order to grant a divorce. Relatively mild allegations, such as devoting too much time to a career, having no common interests or pursuing a separate social life may well suffice. Using mild allegations may also make it easier to agree a divorce petition with your spouse in advance.

Fact C. Desertion

Where your spouse deserted you without your consent for a continuous period of at least two years; this fact is almost never used.

Fact D. 2-year separation

By consent, you and your spouse have been living apart for at least two years immediately preceding the presentation of the divorce petition and you both agree to a divorce.

Fact E. 5-year separation

You and your spouse have been living apart for at least five years immediately preceding the presentation of the divorce petition. In this instance, your spouse doesn't have to consent to the divorce.

Where both parties agreed to divorce, this is called an undefended divorce. A straightforward undefended divorce should proceed as follows: -

  • Relationship breakdown 

  • See a Solicitor for some preliminary advice 

  • Inform your spouse of your wish to divorce 

  • Issue Divorce Petition 

  • The Respondent receives the Petition from the Court 

  • The Respondent has 7 days to Acknowledge that they have received the Petition and to consent to the divorce 

  • Court sends the Acknowledgement back to the Petitioner 

  • The Petitioner applies to the Court for Directions for Trial 

  • The Court will consider the divorce papers and, if satisfied all is in order, will issue an entitlement to a decree 

  • Court pronounces Decree Nisi 

  • 6 weeks and 1 day later the Petitioner may apply for Decree Nisi to be made Decree Absolute 

  • Court sends the Decree Absolute 

  • The Divorce is complete 

If the divorce is defended, there is an entirely different procedure applies within defended proceedings. This procedure is much more lengthy and costly and in the event of proceedings becoming defended, you should obtain very careful advice about this.

Cohabitation: your parental rights as an unmarried couple

Any married couple who have a child automatically share equal parental responsibility but the situation can be rather different for a couple who are not. Cohabitation is living together as an unmarried couple and cohabitation does not grant you the same legal rights as marriage. Read on to find out more about cohabitation and parental responsibility.

The practical effect of parental responsibility is that where two parents have parental responsibility, one parent cannot make important decisions about the child without the other parent agreeing to it. If it isn't possible for the parents to reach agreement, then either parent (although it's usually the parent who feels his or her wishes are being ignored) must apply to the court for the issue to be decided. The types of issue that are covered by parental responsibility are important (as opposed to day-to-day) issues regarding a child, such as education, religious instruction and medical care.

As an unmarried couple, if your child was born before 1 December 2003, only the mother has automatic parental responsibility. The natural father of that child can only gain parental responsibility by either:

  • entering into a parental responsibility agreement;
  • obtaining a court order giving him parental responsibility; or
  • marrying the mother.

If the mother with parental responsibility dies, the unmarried surviving father still doesn't gain automatic parental responsibility unless he has a court order, a parental responsibility agreement in his favour, or he was registered as the father of the child born after 1 December 2003.

While an unmarried father of a child born before 1 December 2003 has no automatic parental responsibility for that child under the law, when it comes to providing financial support for the child the law makes no distinction between him and a father with parental responsibility. The Child Support Agency, for instance, will assess fathers without parental responsibility for child support in the same way it does for all other fathers and the court will allow an application to be made on behalf of a child for a lump sum to be paid by the father who doesn't have parental responsibility.

Parents, whether or not they are married, share parental responsibility for a child born after 1 December 2003, providing that the father is registered on the birth certificate.

In Scotland, the Family Law (Scotland) Act 2006, which comes into force on 4 May 2006, confers parental responsibility and parental rights on unmarried fathers where the father is registered as the child's father. However, it only applies to unmarried fathers who are registered as the father after 4 May 2006.

Common Law Marriage

There are many myths about the law relating to those who live together which give people a false sense of security. The most dangerous of these affects unmarried couples who live together (this is known as cohabitation). 

How many times have we all heard that an unmarried couple's relationship is protected by the law because it is considered to be a 'common law marriage'.

Think again. In truth, there are no such people as 'common law wives' and 'common law husbands', since the concept of a common law marriage was abolished way back in 1753 by the Marriage Act. Despite the fact that it is frequently referred to in the press, it plays no part in the law of England and Wales.

Until recently in Scotland, there was a form of common law marriage called 'marriage by cohabitation with habit and repute'. The theory behind this law was that if a man and woman cohabited as husband and wife in Scotland for sufficient time and were generally held and reputed to be husband and wife and were free to marry each other, they would be presumed to have consented to marry each other and if this presumption was not overturned, they would be considered to be legally married. This form of common law marriage has now been abolished by the Family Law (Scotland) Act 2006 which came into force on 4 May 2006.

So, to conclude, if you are an unmarried couple living together (cohabitation), it is extremely unclear as to whether you have any special rights against your partner if you separate, however long you have lived together and however many children you may have. This means that you may not have any special rights for financial help if things go wrong. 

But there are steps you can take to ensure that you will be financially provided for in the event of separation, illness or death. A simple step you can take is to make a will.


The information on our website is for the convenience of the site users only. We try to keep this information as up-to-date as possible and M & S Solicitors cannot accept liability for any loss caused by inaccuracy.