1. What are the essential differences in establishing the irretrievable breakdown of marriages by proving “fault” facts and “non-fault” facts?
The court will hold that the marriage has broken down irretrievably if satisfied that one or more of the following five facts are established:
- adultery (“fault” facts)
- unreasonable behaviour (“fault” facts)
- one year’s separation with consent (“non-fault” facts)
- two years’ separation without consent (“non-fault” facts)
- desertion for a continuous period of at least a year (“fault” facts)
There is no essential difference in proving “fault” or “non-fault” facts in terms of getting a divorce, except perhaps it is more expensive and time consuming to use grounds of “fault” facts because the spouses need to prove misconduct for the court to grant divorce, along with the risk of the spouse resisting the petition because there is disagreement with or unwillingness to agree with the allegation of the fault facts.
Are there practical difficulties in proving “fault” facts?
There are practical difficulties in proving “fault” facts as most of the time there is no direct evidence to prove the “fault” facts and it is a costly and difficult exercise to prove affairs between third party which often happened in private – a belief and suspicion is not enough. Practically if “non-fault” facts are available, the petitioner should avoid establishing the case with “fault” facts to reduce the risk and cost of litigation.