Legal & Co | Grounds for Divorce
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Divorce and grounds for divorce

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To divorce you must have been married for at least one year and the following grounds can be used for divorce:

  • Unreasonable behaviour
  • Adultery
  • Separation – two years separation with the consent of your husband/wife or five years separation without the consent of your husband/wife
  • Desertion

There is really only one ground for divorce – the irretrievable breakdown of a marriage. This is proved by establishing one or more of the following ‘facts’:

Unreasonable behaviour

You must show that your husband/wife has behaved in such a way that you cannot reasonably be expected to live with him or her. Unreasonable behaviour is now the most common fact on which to prove the grounds for divorce in England and Wales. In an unreasonable behaviour petition, the Petitioner (the husband/wife applying for the divorce) sets out a number of allegations against the Respondent (the husband/wife receiving the divorce papers). The court does not require severe allegations of unreasonable behaviour in order to grant a divorce. Relatively mild allegations such as devoting too much time to a career or hobby, having nothing in common any more or pursuing separate interests may suffice. Using minor allegations may make it easier to agree the contents of the petition with your husband/wife thereby ensuring the divorce goes through more amicably, more quickly and more cheaply.

Adultery

You must prove through actual admission or through sufficient circumstantial evidence that your husband/wife has had sexual intercourse with another person and that you find it intolerable to live with them. If a sexual liaison short of sexual intercourse has taken place, it’s suggested that the unreasonable behaviour ground is used instead. You can name the other person involved as a Co-Respondent but this isn’t essential and can have serious consequences. Doing so can make the proceedings more acrimonious, more complicated and more drawn out. It’s therefore usually best to avoid naming a Co-Respondent. If you wish to name the other person, you should take legal advice before doing so. Adultery can be used as the basis for a divorce petition whether you and your spouse are still living together or have separated. Not more than six months must have elapsed though since you became aware of the adultery before the petition is sent to the court, unless the adultery is continuing. Otherwise the court will take the view that you accepted the adultery. The courts refer to this as condoning the adultery. Please note – you cannot petition for divorce on the grounds that you have committed adultery. Your husband/wife could divorce you on these grounds or you will need to use one of the other grounds – most commonly unreasonable behaviour.

Two years separation

By consent you and your husband/wife have been living apart for at least two years immediately preceding the presentation of the petition and you both agree to a divorce.

Five years separation without consent

You and your husband/wife have been living apart for at least five years immediately preceding the presentation of the petition. In this instance, your husband/wife need not consent to the divorce.

DESERTION

This is where your husband/wife has deserted you for a continuous period of at least two years. This fact is almost never used. A divorce case and the costs involved DO NOT automatically include the costs of sorting out matters in relation to children, for example getting agreement on contact and residence, or the finances. These are ancillary matters which will be dealt with as separate court cases unless an agreement is reached amicably between the two parties.

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