#1: Adultery Is The “Strongest” Reason
1) Truth: There is only 1 ground for Courts to grant a divorce: that the marriage has broken down irretrievably, ie the marriage cannot be saved. The 5 accepted proofs (evidence of facts) of an irretrievable breakdown of marriage are:
- Adultery (sexual relations with another person)
- Desertion ( after 2 years’ of attempts to connect with “deserting” spouse)
- Unreasonable behaviour (acting in a manner such that the party applying for divorce cannot be reasonably expected to tolerate)
- 3 years’ Separation – consent of other party needed in writing
- 4 years’ separation – other spouse’s consent not required.
2) The 5 proofs or facts can be likened to 5 different roads leading to 1 destination: irrecoverable marriage, justifying a divorce from the Courts. The usefulness of such an analogy is to dispel the perception (quite often held, in my experience) that adultery is a “stronger” ground than desertion or unreasonable behaviour or something similar.
3) The misunderstanding that one “route” is “better” or more advantageous probably arises from the sense that either:
- Who is at fault for the likely (and inevitable) quarrels concerning “unreasonable behaviour” is too hard to prove as the court may not believe the party applying for divorce on this fact ; Or
- The party proven to be “not at fault” is likely to receive more favourable orders concerning financial support in maintenance or division of properties, and custody care and control of children of the marriage; Or
- Separation is the “easiest” option, but only if the spouse agrees to it, which gives rise to a second , more complicated, misunderstanding all on its own: you can have an “automatic” divorce by “filing for separation”.
Let me explain.
#2: An Easier, Automatic Option If One Files For Separation
4) Without an exhaustive study, some causes for this misunderstanding include:
- The indiscriminate use of the expression “file for separation” seen or heard on TV;
- The concept of “judicial separation” as a divorce developed for Roman Catholics ( who had orthodox views that marriage is a divine decree ordered by God, hence man shall not “tear asunder” such marriage by divorce)
- Agreements to divorce by separation are “filed” by the law firms who prepared and drafted the agreement
- When a spouse (usually the woman) confronts the other spouse about marital unfaithfulness and wants a divorce, the “cheating” spouse (usually the man, although the number of cheating women has risen) would respond saying: “No, I will not agree to divorce, I’ll fight you all the way” or “Only if you agree to a separation for the good of everyone (especially the children etc)”
- Fear that the other spouse will “make life difficult” if there is no proof of misconduct or the fault of that other spouse.
5) However the misunderstanding originated, the following remains true:
- Even if there is a separation agreement, a formal application for divorce must be presented to the Court before a divorce order is granted;
- The present practice and procedure required by the Courts when proving an irretrievable breakdown of marriage by separation is that there must be an account of when and how the parties disagreed or quarrelled which led to one or both parties moving out (of the bedroom or home, even) and living separately and apart from each other
- The existence of the 4 year separation as a fact of breakdown of the marriage (thus ending in divorce) , even if the other spouse refuses to agree to divorce remains a viable option. Of course, this means things are not expected to be as easy as one might hope. All this means that if one braves the discouraging statements from the “unco-operative” spouse, a divorce is still possible. (At which point, I wonder if the less confident spouse has suffered some form of “put down” if not abuse such that his/her feels handicapped or disadvantaged by the other spouse)
For separation and other facts (ie adultery, unreasonable behaviour, desertion ) of an irretrievable breakdown of marriage, there Is a way if one remains resolved in the face of opposition from the other spouse.
Apart from Legal Aid for the financially disadvantaged spouse (subject to means testing), the court forms and procedure are designed and simplified such that one need not be a lawyer to conduct one’s own divorce.
I have found from experience that the courage and resolve to put an end to an unhappy (and often abusive) marriage is the most important ingredient to obtaining a divorce.