How to initiate a divorce when you are “at fault”

As the divorce law in England and Wales currently stands, unless you are prepared to wait 2 years, someone in the marriage has to be “at fault” for the other person to divorce them.

This is not an ideal situation and hopefully change is on the horizon, but for now it can leave couples whose marriage is over in a dilemma as to how to legally go their separate ways.

Why not wait?

Although you may have fully moved on with your lives and the only thing that ties you together is a marriage certificate, that certificate is still a legal document that makes you next of kin.

The chances of this affecting your life is slim, but the consequences are severe if life takes an unexpected twist, or more seriously, suddenly ends. Your ex spouse will be your legal representative and if you haven’t updated your will, also inherit your worldly goods.

It will also make purchasing more property, or other big financial decisions complicated. Divorce is a slow process at the best of times so if you are ready to make are ready to move on and make a fresh start then having the divorce finalised can have huge psychological benefits for you and your ex spouse, allowing you both to draw a line under your marriage.

When the other person has to file

If you want to get divorced ASAP, but are clearly the one “at fault” due to adultery, then you can be left in a difficult situation, as you have to wait for your spouse to do the paperwork. You also only have a 6 month window after your spouse has discovered the adultery for them to file.

If emotions are running high then that 6 months can go by very quickly and you may find yourself in the position of either having to file against them for unreasonable behaviour, or waiting for two years, which can put a strain on future relationships.

Encouraging your spouse to file against you may seem counterintuitive but it may be the best option. Your only other option is to file against them for unreasonable behaviour and that may cause unnecessary stress and hurt.

Know the facts

There are so many misconceptions about divorce that it is likely you both need to do a lot of reading. Seek a consultation with a family law solicitor so you know where you stand legally and know the process. The government website gives you access to all the forms that you will need. Some people assume that the person “at fault” will receive a raw deal from the courts. This is a fallacy. Unless the person “at fault” is abusive and a potential danger to any children, the courts don’t take it into account.

Get over the moral outrage

Admitting to committing adultery in a legal setting may cause you concern. However, no one in the legal process is interested in your sex life, they are only concerned that you can legally end your marriage.

Your spouse may also not want to put in writing that they have been cheated on, but again, no one will see the paperwork other than a handful of legal professionals who have seen many of these forms before. It doesn’t have to be anyone else’s business why you are divorcing.

There is also no need to name the third party if you are not going to contest the divorce, so they do not have to be involved.

Choosing to divorce via adultery is a much less painful way to divorce than having to divorce because of “unreasonable behaviour” when you have to put in writing the faults of the other person.

Educate the other person

Once you are armed with the facts, ensure your spouse is. You may think that they have done some research, but they may not have done. Try and find out how much they know and send them impartial and readily available facts about the process if they need it.

Make the process easy

Your spouse may stall the process of divorcing you for a number of reasons. They may be too emotional, have too much on their plate, or hold out a hope that it isn’t really happening.

You have to assure them that the divorce will happen and make it as simple as possible for them. They may have to send off the initial paperwork, but you can get it lined up and offer to pay the fee.

If you will need legal advice or mediation, start researching and set up appointments.

There is no need to rush once the process has begun

Your spouse may feel rushed if you push for divorce quickly when they want to wait. However, once the process is underway, there is no need to rush. You have plenty of time to arrange what is happening with the children and how you will divide your assets.

Try to stay civil

Do your best to keep things factual and stay civil. That is the best way to avoid a lengthy and costly divorce. You may have to take a few blows, but accept that. As long as you don’t leave yourself financially vulnerable, try to work with your ex to get the divorce process underway.

Scroll to Top