Can I divorce my abusive spouse?

Sadly, if you are experiencing abuse in your marriage, you are far from being alone   with research suggesting that as many as one in four women and one in eight men will experience it at some point. 

‘Ending an abusive marriage will mean not only leaving your spouse, but also formally divorcing them,’ says Robert Bellhouse family law expert with Ware & Kay in York & Wetherby. ‘This is a daunting but important step, as studies have shown that abusive partners do not often change their ways and so your circumstances are unlikely to change if you remain in your marriage.’

As well as guiding you through the legal process of divorce, we will be on your side providing practical advice too.  We are connected with a wide range of support services and can introduce you to people who will help you to find a safe place to stay, if required, and find out if you are eligible for any state benefits. It is natural to be concerned about money, but you may well be eligible for Legal Aid to cover your legal costs.

To obtain a divorce, you must be able to show the marriage has broken down irretrievably.  There are five ways this can be shown, namely:

• one partner has deserted the other;
• there has been adultery;
• one partner is guilty of unreasonable behaviour;
• you have been living apart for at least two years and you both consent to divorce; or
• you have been living apart for at least five years.

Where there is domestic violence or other abuse within the marriage, then the most common way to proceed is by providing evidence of the unreasonable behaviour.  It is necessary to show that your spouse has behaved in such a way that you cannot reasonably be expected to continue to live with them. 

Your solicitor will take a history of your relationship so that they are able to describe a few significant incidents to demonstrate to the court the abusive and unreasonable behaviour of your spouse.  You will not be expected to state each and every incident over the course of your marriage, but just highlight a few representative examples. You may find it helpful to keep a diary of incidents, or to make some notes showing a timeline of the unreasonable behaviour.

Divorce hearings are not held in open court, but behind closed doors.  This means that members of the public will not be present.  It is possible that some accredited members of the media could attend the hearing, but there are strict restrictions on what they would be allowed to report.

When applying for a divorce on the basis of unreasonable behaviour, there are certain time limits that must be adhered to.  If you have continued to live together, you must petition within six months of the last incident of abuse.  If you are no longer living together, this time limit may be extended. 

Being able to apply straight away is one of the main advantages of issuing an unreasonable behaviour divorce.

The other main advantage is that you may be able to secure an order from the court stipulating that your spouse pays some or even all of your legal costs for the divorce.

It is a common misconception that if your spouse has behaved unreasonably during your marriage they will be penalised when it comes to the division of the matrimonial assets.  This is not the case, and it is unlikely that your experience of domestic abuse will lead to an increase in your financial entitlements.  It is only in rare and extreme cases that a court will look at an adjustment of matrimonial assets based on the conduct of your spouse.  The court has to be convinced that their conduct was so bad, it cannot be ignored.  For example, this may be if the domestic violence has caused significant personal injury to you.

Facing abuse from the person that is meant to love you most commonly leads to a lack of confidence and self-doubt, but the law recognises the need to protect and help victims, and our courts are investing more in ensuring victims of domestic violence are given much needed support.

For further information, please contact Robert Bellhouse in the family law team on York 01904 716000, Wetherby 01937 583210 or Malton 01653 692247 or email robert.bellhouse@warekay.co.uk.