It is a common misconception that there are many grounds for divorce. In English law, that is not the case. The only ground available is that the marriage has irretrievably broken down. This ground has to be proved to a judge and is done so by relying on one of five facts.
Five grounds for divorce
Adultery
This fact can only be relied upon if it can be proved and you find it intolerable to live with your spouse. It can only be relied on if it is admitted by the Respondent or it can otherwise be proven. An additional hurdle which must be overcome is that if you are the Petitioner, you must be certain that the “act” of adultery has been committed by your spouse. This means the physical sexual act, not merely that your spouse is in spending time with or has emotional feelings towards someone else. Adultery can only take place between two people of the opposite sex and for that reason this fact is not available when dissolving a Civil Partnership or same sex marriage. There is a time bar for relying on this fact if the parties have lived together for a period of 6 months or more, since the adultery became known.
Unreasonable Behaviour
This is perhaps the most common fact relied upon. It is necessary to set out 5 or 6 examples of your spouse’s behaviour which prove to a judge, that you cannot reasonably be expected to live with your spouse. It is highly unlikely that the sorts of behaviour cited will affect the financial outcome of the case so the examples used should not be overly contentious otherwise the risk of a defended petition increases.
Desertion
This ground is rarely relied upon as it is more technical and it is often possible to rely on separation or unreasonable behaviour instead. There must also be an intention to bring the marriage to an end and it must be without your consent. Sometimes, these elements are difficult to prove. In addition, your husband or wife must have left you for a continuous period of two years, immediately prior to the filing of the petition at Court. Several periods of desertion cannot be added together to form the two year period. However, a period or periods not exceeding 6 months will be ignored.
Two years separation with consent
You and your spouse must have been separated for 2 years and your spouse must consent to the petition. If you live apart from your spouse, this will of course satisfy the test. However, it is possible to rely on the fact of separation even if you are living with your spouse. It is possible to be “living apart” notwithstanding that you are under the same roof. You must be able to show that you live separate lives – for example, you have separate bedrooms, you do not eat together and you do not have family days out or holidays. The two year time period must be continuous, but similar to desertion, a period or periods not exceeding six months will be ignored.
Five years separation without consent
This ground in similar to two years separation above, but you and your spouse must be been living apart for a continuous period of 5 years. There is no need to obtain the consent of your husband or wife, but the divorce petition will still need to be served upon your spouse by the Court.