Grounds for Divorce

Until the government introduces no-fault divorce, currently not expected until autumn 2021 due to delays caused by the COVID pandemic, you will be required to justify to the Courts why you should be entitled to a divorce.

There is only one ground for a divorce: “the irretrievable breakdown of the marriage”.

You will need to give one of five reasons why the marriage has irretrievably broken down, or as evidence that the marriage has broken down:

1. Adultery and intolerability
2. Behaviour
3. Desertion
4. Two years separation with consent
5. Five years separation

Which reason you rely on does not have an impact on any settlement of the matrimonial finances, but each has its own legal requirement that must be satisfied for the divorce to be granted.

A – Adultery

Your spouse must have committed adultery and you find it intolerable to live with them.

The adultery may be proved or inferred by:

1. A confession
2. Birth of a child or finding of paternity in Children Act proceedings

• Circumstantial evidence showing both guilty purpose and opportunity to gratify it

1. Conviction of an offence entailing sexual intercourse, eg rape
2. Finding of adultery in an earlier case

You must also prove you find it intolerable to live with your spouse; this does not need to be caused by the adultery, and can simply be asserted in a statement.

Naming the person your spouse had an affair with is discouraged by the Family Procedure Rules, unless you think your spouse is likely to object to the divorce.

You will not be able to rely on the adultery if you have lived with your spouse for six months (or periods of time totally six months) after you have discovered the adultery.

 

B – Behaviour

The respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent.

In the petition, you will need to give examples of your spouse’s behaviour and why it would be unreasonable to be expected to live with them: consider between 3 and 6 examples of their behaviour, covering the first, worst and last examples, and explaining how the behaviour has impacted you.

The Court will evaluate whether it is reasonable to expect you to live with your spouse; unless you can show good reason for doing so, the longer any cohabitation has continued the less likely it is the divorce will be granted.

 

C – Desertion

The respondent has deserted the petitioner for a continuous period of at least two years immediately before the presentation of the petition.

There are several elements that need to be satisfied to rely on this reason:

1. Separation (including if you live separate lives in the same house);
2. Intention to desert (bring the union to an end);

• You, as the petitioner, did not consent or agree to the separation;

1. The respondent does not have a just cause for leaving
2. Continuous period of desertion of two years (not separate periods)
3. The decision must be given going at the time the petition is filed

 

D – Two years separation with consent

The parties to the marriage have lived apart for a continuous period of at least two years immediately before the presentation of the petition and the respondent consents to the decree being granted.

You must have been living separately (including separate lives in the same house) for two years.

The respondent must also consent to the divorce in writing, which is either sent to the Court by the applicant with the divorce petition, or is confirmed in the Acknowledgement of Service.

The respondent may prevent the divorce becoming absolute by asking the court to consider whether they need financial provision after the divorce or if the financial provision made is fair and reasonable, or the best that can be made in the circumstances.

 

E – Five years separation

The parties to the marriage have lived apart for a continuous period of at least five years immediately before the petition.

You do not need the consent of the respondent and living separately means the same as for two-year separation.

The respondent will only be able to defend the divorce by either denying the separation or proving the divorce would result in grave hardship, financial or other, and in all the circumstances it would be wrong to dissolve the marriage.

The effect of cohabitation on Desertion, Two years separation and Five years separation

If you have cohabited for a period of less than six months before filing the petition, this will not prevent you relying on these reasons, but any time spent cohabitating will not count towards the required period of separation.

 

What next?

If you would like to discuss a divorce speak to one of our family law experts today on 01484 519999. Our family team cover all of our offices in Leeds, Wakefield, Huddersfield, Halifax, Morley, Horbury, Bradford and Guiseley.