Under current divorce law in England, unhappy couples are not automatically entitled to a divorce. It is necessary for one party to petition the court demonstrating that the marriage has broken down irretrievably, as evidenced by one of the relevant five facts:
- Behaviour which makes it unreasonable to expect the petitioner to continue living with the respondent
- Two years separation with the consent of the other party
- Five years separation without consent
The respondent (the person who does not initiate the divorce) is able to challenge the assertion that the marriage has broken down. If they do so, the court must look into the facts set out in the petition. If the facts cannot be proven, and the judge is not satisfied, the divorce can be refused. This, in effect, compels the parties to remain married until five years of separation has passed.
When attempting to divorce, a petitioner must therefore blame the respondent for the breakdown in the marriage, even if the decision to end things is amicable. This forces a petitioner to cite ‘faults’ in their partner’s behaviour and prove them to the court, leading to antagonism, increased costs and dishonesty among litigants.