The Grounds for Divorce Explained

To get divorced you must show that your marriage has irretrievably broken down. To do so, it is necessary to establish one or more of the following five facts:

• Adultery
• Unreasonable behaviour
• Two years separation with consent
• Five years separation
• Desertion

In practical terms, what do these terms mean?

Adultery

Adultery is when you or your husband/wife has had voluntary sexual intercourse with a person of the opposite sex.

It is not possible to start divorce proceedings based on your own adultery.

Because of the nature of adultery, it can sometimes be difficult to prove. If your husband/wife is willing to admit to it then, obviously, there will be no difficulty. If there is actual evidence (the most obvious being the birth of a child) then this can also be relied upon.

In general, however, unless it is has been admitted or can be proved it can sometimes be better to base the divorce proceedings on unreasonable behaviour. Your husband's/wife's relationship with another person would be included in the divorce papers as an example of unreasonable behaviour. Unreasonable behaviour is explained in more detail below.

If you have lived with your husband/wife for more than 6 months after you discover adultery has been committed you cannot use it as the basis of the divorce. If, however, the adultery is continuing then the 6 month period only starts to run upon your discovery of the last act of adultery.

Behaviour

Whether your husband or wife has behaved in such a way that you cannot reasonably be expected to live with them is a mixture between a subjective and objective test.

The test (which has been set out in case law) is whether a right thinking person would come to the conclusion that your husband/wife has behaved in such a way that you cannot reasonably be expected to live with him or her taking into account the whole of the circumstances and the characters and personalities of the parties.

Because of this objective/subjective mix the range of behaviour which can be cited is very wide. Obvious examples would include domestic violence but it can be as far from this as not paying you enough attention or failing to support you in your hobbies/careers etc.

The examples of behaviour need to be strong enough to ensure that a Judge will agree that they warrant a divorce. The difficulty, however, is these allegations can sometimes give rise to conflict and start the case with an unnecessary level of acrimony. The skill of your divorce solicitor is to strike a balance between the two.

2 years separation with consent and 5 years separation

To base your divorce on one of these facts, it is necessary to live separate and apart for either two or five years. If you have lived separate and apart for two years and your husband/wife agrees to the divorce then you can use the first ground. If you have lived separate and apart for five years you do not need the consent/agreement of your husband or wife.

If you live in separate households it can be assumed that you live separate and apart. Even if you live in the same household it is still possible to live separate and apart as long as it can be considered that the normal relationship between you as husband and wife has ceased. For example, if you live in the same household but sleep in separate rooms, do not eat together, do not do household chores together etc you could still be considered to be living separate and apart.

Desertion

It is very unusual to rely on desertion to obtain a divorce. In comparison with the other facts, it is relatively technical and it can therefore sometimes be easier and more certain to proceed another way.

To show that your husband or wife has deserted you it is necessary to show first that cohabitation has ceased. The cohabitation must have been brought to an end by your husband or wife against your consent and your husband or wife must not have any reasonable cause to have stopped cohabiting with you. Finally, this must be the position for a continuous period of at least two years immediately before the preparation of the divorce papers.

As can be seen, given the fact that usually your husband or wife will want the relationship to end and you have to have lived separately for two years, it is often easier to proceed on the basis of two years separation with consent or, indeed, unreasonable behaviour.

For a consultation with a Family Law Solicitor or a Divorce Lawyer call 0844 980 1428 or send us an email. We are available to take your call twenty four hours a day, seven days a week.