Grounds For Divorce
The very first step in your divorce process will be proving that you have sufficient grounds for a divorce. This is a test which must be satisfied before you can proceed with filing your petition to divorce with the relevant family court.
The first aspect is one of time limitation: in England and Wales, a petition to divorce may not be submitted unless you have been married for more than one year.
With the time limitation satisfied you then need to prove you have “grounds for divorce.” In our country there is only one basis upon which a divorce may be approved and that is the “irretrievable breakdown” of your relationship.
There are five main ways a relationship can be considered to have broken down so much that it cannot be repaired – these are the reasons the Courts will accept. Only one of the below reasons is required:
1) adultery (please note that in the case of a same-sex marriage, this reason may only be cited where the adultery has occurred with a member of the opposite sex.)
2) unreasonable behaviour
3) desertion – for a period of no less than two years
4) lived apart for at least two years (with consent)
5) lived apart for at least five years (without consent)
If you are in any doubt about whether you have grounds for divorce or indeed which ground would be the most suitable then our solcitors can help you.
In the UK there are just five grounds for divorce. These grounds must be able to prove that the marriage has irretrievably broken down.
In the UK adultery is still defined as sexual intercourse between consenting man and women, one or both of whom are married to another person. It does not currently include same sex intercourse or any other form of sexual gratification. It also does not include unfaithfulness prior to marriage. In same-sex marriages, adultery still means sex with a member of the opposite sex.
To cite adultery as grounds for divorce you must not have lived with ex for more than 6 months after you found out about it. And, you found it intolerable to live with your spouse and this is your reason for living separately.
We generally advise not to name the 3rd party publicly, as it can have a negative effect on the best outcome for you.
Unreasonable behavior is cited for almost half of divorces in the UK and most “instant divorces.
The first point to understand is that irreconcilable differences is not grounds for divorce and does not automatically mean unreasonable behaviour. Two outcomes need to be shown:
- That the marriage has irretrievably broken down and
- That the husband or wife has behaved in unreasonably enough that the spouse finds it intolerable to live together.
Again, since the last act of unreasonable behavior you must not have lived together as husband and wife for more than 6 months and this has to be a reason for living separately.
Unreasonable behavior, is by far the most common ground for divorce cited in a divorce petition.
Desertion, Two years separation or Five years separation:
These are all time based – desertion means your spouse has left without your agreement, without a good reason and you must show that you have tried to prevent your partner leaving or have sought to reconcile during that period.
Two years separation is sufficient if both parties agree to divorce. You cannot defend a 5 year separation petition although you can apply to delay a Decree Absolute for various reasons including financial hardship.
It is important to understand that it is very rare for grounds for divorce cited to have any effect on dividing matrimonial property or with regards to arrangements with children. We can advise you as to whether or not this applies to you.