Grounds for Divorce
For the purposes of this thread I am working on the presumption that both partners have agreed the relationship has irretrievably broken down and the decision to part company already made – apportionment of blame or who-left-who is irrelevant. On this premise the grounds for divorce (or the grounds for the dissolution of a Civil Partnership) are relatively unimportant and so there is no need for me to address the law in any particular detail here. I shall simply state the legal grounds available under each jurisdiction with minimal commentary.
Grounds under English Law
In England there is only one ground for divorce. A divorce can only be obtained if the marriage has “irretrievably broken down”. The breakdown must be ‘proved’ by the petitioner (i.e. the party filing for divorce) by producing evidence of at least one of the 5 “facts” found under Section 1(2) of the Matrimonial Causes Act 1973:-
Note the glaring absence of a ‘no-fault’ divorce! With one exception (see below) there is no way of divorcing in England without blame being apportioned for the marriage irretrievably breaking down. The Family Law Act 1996 was enacted to bring in sweeping changes to divorce law including a no-fault divorce – but the all important Part I of that Act has not yet been brought in to law and it appears to have been shelved indefinitely.(a) that the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent;
(b) that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent;
(c) that the Respondent has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petition;
(d) that the parties to the marriage have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition and the respondent consents to a decree being granted;
(e) that the parties to the marriage have lived apart for a continuous period of at least five years immediately preceding the presentation of the petition.
Many couples seek to divorce citing “irreconcilable differences” where neither party wishes (or is quite simply unable to!) blame the other for the marriage breaking down; the fact of the matter being that the couple have simply grown apart over time and find themselves trapped in an unhappy marriage – but (quite wrongly in my view) this is not an available ground for divorce. So, to be able to divorce in England the law requires a party to ‘prove’ two things (1) that the marriage has broken down irretrievably and (2) that one of the parties to the marriage has behaved in such an unreasonable manner that the other finds it intolerable to live with him or her (for the avoidance of doubt, this includes an act of desertion).
The only possible way of divorcing in England without the finger of blame being pointed is to rely on ‘fact’ (d) in the above list – that is the parties have lived apart for a ‘continuous’ period of at least 2 years immediately before divorce proceedings are commenced and the respondent to the divorce ’consents’ to the divorce being granted.
Also bear in mind that the ‘facts’ listed above have specific legal definitions which may not necessarily mean the same as one might first think.
Dissolution of a Civil Partnership: Section 44 of the Civil Partnership Act 2004 provides virtually identical provisions for the dissolution of a Civil Partnership as the ‘facts‘ listed under Section 1(2) of the Matrimonial Causes Act (facts relating to the ‘irretrievable breakdown’ of a marriage). The only exception being 'fact' (a) – because of the legal definition of ‘adultery’, adultery cannot be a factor for a Civil Partner. Should a Civil Partner ‘play away’ then that ‘fact’ would be dealt with under the provisions of Section 44(a) of the Civil Partnership Act – that being the same ‘fact’ as (b) in the above list.
Grounds under Thai Law
As discussed above, Thai law provides for a no-fault, no-blame divorce. Undoubtedly an administrative divorce provides the easiest, cheapest and least painful way to divorce. If this is a realistic option, then clearly this should be the preferred route to an amicable resolution. All financial matters and arrangements for any children need to be agreed before filing the divorce as these matters need to be recorded in the divorce papers (Paragraphs 1520 & 1522 of the Code).
According to Paragraph 1516 of The Civil and Commercial Code of Thailand, there are 10 separate grounds for divorce:-
... to be continued below(1) the husband has given maintenance to or honored such other woman as his wife, or the wife has committed adultery, the other spouse may enter a claim for divorce;
(2) one spouse is guilty of misconduct, notwithstanding whether such misconduct is a criminal offence or not, if it causes the other:
(a) to be seriously ashamed;
(b) to be insulted of hated [sic] or account of continuance of being husband or wife of the spouse having committed the misconduct; or
(c) to sustain excessive injury or trouble where the condition, position and cohabitation as husband and wife are taken into consideration; the latter may enter a claim for divorce;
(3) one spouse has caused serious harm or torture to the body or mind of the other, or has seriously insulted the other or his or her ascendants, the latter may enter a claim for divorce;
(4) one spouse has deserted the other for more than one year, the latter may enter a claim for divorce;
(a) one spouse had been sentenced by a final judgment of the Court and has been imprisoned for more than one year in the offence committed without any participation, consent or in the knowledge of the other, and the cohabitation as husband and wife will cause the other party sustain excessive injury or trouble, the latter may enter a claim for divorce;
(b) the husband and wife voluntarily live separately because of being unable to cohabit peacefully for more than three years, or live separately for more than three years by the order of the Court, either spouse may enter a claim for divorce;
(5) one spouse has been adjudged to have disappeared, or as left his or her domicile or residence for more than three years and being uncertain whether he or she is living or dead;
(6) one spouse has failed to give proper maintenance and support to the other, or committed acts seriously adverse to the relationship of husband and wife to such an extent that the other has been in excessive trouble where the condition, position and cohabitation as husband and wife are taking into consideration, the latter may enter a claim for divorce;
(7) one spouse has been an insane person for more than three years continuously and such insanity is hardly curable so that the continuance of marriage cannot be expected, the other may enter a claim for divorce;
(8) one spouse has broken a bond of good behavior executed by him or her, the other spouse may enter a claim for divorce;
(9) one spouse is suffering from a communicable and dangerous disease which is incurable and may cause injury to the other, the latter may file a claim for divorce;
(10) one spouse has a physical disadvantage so as to be permanently unable to cohabit as husband and wife, the other may enter a claim for divorce.