So you’ve decided that you want to go ahead with a divorce, but do you have grounds? And if so, on what basis should you proceed?
There is, in fact, only one ground for divorce: that the marriage has irretrievably broken down. However, the party issuing the divorce proceedings (known as ‘the petitioner’ – the other party is known as ‘the respondent’) must show such breakdown by proving one of five things:-
1. That the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent. Adultery is normally proved by an admission from the respondent, but may also be proved, for example, by evidence that the respondent has parented a child of which the petitioner is not the other parent, or by a finding in other proceedings, such as a decree in previous judicial separation proceedings, granted by reference to the respondent's adultery. Note that one party to a marriage shall not be entitled to rely on adultery committed by the other if, after it became known to him that the other had committed that adultery, the parties have lived with each other for a period exceeding, or periods together exceeding, six months. Adultery is used to prove irretrievable breakdown in about 15-20% of cases.
2. That the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent (often referred to as ‘unreasonable behaviour’). Unreasonable behaviour can take many forms, such as the use of violence, verbal abuse, drunkenness and so on. Whether the behaviour is sufficiently serious is a matter for the court, although the reality is that few unreasonable behaviour petitions are refused. Note however that the court may refuse the divorce if the parties live together for six months after the last incident of unreasonable behaviour. Unreasonable behaviour is the most common way of proving irretrievable breakdown, being used in about 50% of divorce petitions issued by wives and about 35% of petitions issued by husbands.
3. That the respondent has deserted the petitioner for a continuous period of two years or more (‘desertion’). The desertion must be without good reason and with the intention of bringing the relationship to an end. Periods of cohabitation not exceeding six months will not be taken into account, but will not count towards the two year period. In fact, desertion is very rarely used to prove that a marriage has irretrievably broken down, in less than 1% of cases.
Richard Howlett - Partner
4. Two years’ separation and consent: that the petitioner and the respondent have lived apart for a continuous period of at least two years and the respondent consents to the divorce. The parties can be treated as living apart even if they still live under the same roof, provided that they are living completely separate, including sleeping separately, cooking and washing separately and having separate finances. The respondent must give his or her consent to the divorce in writing. Note again that periods of cohabitation not exceeding six months will not be taken into account, but will not count towards the two year period. Two years’ separation and consent is used in about 30% of petitions issued by husbands and about 20% of petitions issued by wives.
5. Five years’ separation: that the petitioner and the respondent have lived apart for a continuous period of at least five years, without any requirement for the respondent’s consent. "Living apart" has the same meaning as under two years' separation and consent, above. Once again, periods of cohabitation not exceeding six months will not be taken into account, but will not count towards the five year period. Five years’ separation is used in about 10 to 15% of divorces.
This is just a brief summary of the grounds for divorce. If you require any further advice, then you should consult a specialist divorce lawyer.
Richard Howlett - Solicitor at Selachii This email address is being protected from spambots. You need JavaScript enabled to view it. - 02077925649
