What are ‘irreconcilable differences’, and how does it affect my Divorce? Gemma Purt, Partner in Family Law, explains the term and the upcoming changes to grounds for Divorce.
What does Irreconcilable Differences mean?
A dictionary definition of what “Irreconcilable Differences” means tells us that it means “disagreements between people, especially two married people that cannot be resolved”1.
This term in itself is not a sufficient ground for commencing divorce proceedings in England and Wales.
When a married couple’s relationship ends and they wish to formalise this with divorce then the divorce is not based on the fact that there have been “Irreconcilable Differences” in the marriage but rather that there has been an irretrievable breakdown of the marriage based on one of the five facts.
New legislation which will change the divorce procedure is due to take effect in April 2022 but currently the five facts are adultery, unreasonable behaviour, 2 years separation with consent, desertion and 5 years separation.
Unreasonable behaviour is a commonly used fact in which the petitioner cites the behaviour of the respondent which they have found unreasonable and as such they find it intolerable to live with that person. As a result of this the examples that are given are likely to include differences which the parties have not been able to reconcile i.e. irreconcilable differences.
The unreasonable behaviour does not have to be aggressive or violent behaviour, although there will be cases where it is, but it can be any behaviour which the petitioner has found unreasonable. People cite a whole range of different behaviours that for them has led to the breakdown of the marriage. Common behaviours cited are the respondent not involving themselves in family life, or coming home from work and taking themselves off to another room, perhaps not eating with their spouse and children, working long hours or making what are perceived to be unreasonable demands. Unreasonable behaviour can also be used to cite adulterous behaviour when adultery is suspected or when the party that has committed the adultery will not admit it and you want to avoid contested divorce proceedings (to proceed with divorce using the adultery fact then the respondent has to have not only committed adultery but also has to have admitted it).
The test for unreasonable behaviour is a subjective test and the test is - has the respondent behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent? Therefore as long as you feel that the behaviour is unreasonable and as a result you find it intolerable to live with your spouse then arguably you should be entitled to proceed.
However, this was not the outcome in the case of Owens –v- Owens where the unreasonable behaviour cited was considered in great detail. Mrs Owens had issued divorce proceedings on the basis of Mr Owens unreasonable behaviour after a long marriage of some 37 years. The difficulty arose when the Judge at first instance did not agree that the behaviour cited by Mrs Owens was unreasonable. The Judge felt the allegations cited had been exaggerated and found the behaviour to be of the kind that was to be expected in a marriage. The decision was appealed and the case eventually progressed to the Supreme Court where the Judges upheld the decision of the Judge at first instance and Mrs Owens was not able to proceed with her divorce on the fact of unreasonable behaviour. As Mr Owens would not consent to a divorce at all and therefore Mrs Owens would not be able to proceed on the fact of 2 years separation with consent she was left having to wait until a period of 5 years had elapsed to proceed with her divorce using that fact. This case and the decision made however highlighted the need for Parliament to consider a change in the law.
No Fault Divorce - 6 April 2022
For over 30 years campaigners had been seeking an end to the “blame game” that arises in the current divorce system and have campaigned for a “no-fault divorce” system.
The reforms have now been approved and we will soon see an end to the current divorce laws with the new legislation coming into effect in April 2022.
The new reforms will end the need for the parties to have to either blame each other in order to get divorced or be faced with the option of waiting a considerable time before they are able to divorce. Currently most people proceed on the fact of unreasonable behaviour because in order to formalise your financial arrangements on divorce in a legally binding way you need to be within divorce proceedings and most people do not want to wait until they have been separated for 2 years to proceed on the fact of 2 years separation with consent. However hard you try to proceed using unreasonable behaviour amicably it does often create animosity between the parties which can have a knock on effect, particularly if the parties are trying to co-parent children.
Under the new legislation the parties will be able to issue divorce proceedings individually or jointly and there will only be limited situations in which a divorce can be contested. The current facts of the divorce will no longer be relevant and whilst there will still of course be irreconcilable differences that have arisen between parties which has led to the irretrievable breakdown of the marriage these will no longer need to be cited and set out in black and white in the divorce petition which is so often what creates the animosity. Importantly blame will not have to be attributed to either party.
The new legislation will not speed up the divorce process and the process will include a 20 week cooling off period to ensure that the parties still wish to proceed with the divorce but it is anticipated that the new reforms will end the blaming game between the parties and enable the parties to move forward together in a more constructive way.