What are the grounds for divorce?

There is only one ground for divorce, which is that the marriage has broken down irretrievably. In order to commence divorce proceedings, a divorce petition must be filed with the Court. The person who completes the divorce petition is known as the petitioner. The divorce petition sets out that the marriage has irretrievably broken down and this must be proved based upon one of five facts.

The five facts to prove the marriage has irretrievably broken down are as follows:

1. Adultery
2. Behaviour (also known as unreasonable behaviour)
3. Desertion
4. Two years’ separation with consent
5. Five years separation

1. Adultery

Adultery is where the party who is receiving the divorce petition (known as the respondent) has had sexual intercourse with a person of the opposite sex. A person cannot issue divorce proceedings based on their own adultery. It is also important to note that adultery does not apply to sexual intercourse with persons of the same sex.

In order for the Court to grant a divorce on the basis of adultery, they must be satisfied that the respondent has committed adultery and that the petitioner finds it intolerable to live with the respondent. Therefore, it is often only advisable to use adultery as the basis of the divorce petition is the respondent is likely to admit to the adultery. If they will not admit to the adultery, it may be difficult to prove. For this reason, the fact of behaviour is often used in these cases instead.

2. Behaviour

In order to successfully use the fact of behaviour, the petitioner needs to show that the respondent has behaved in such a way that they cannot reasonably be expected to live with them.

The divorce petition must include specific examples of the respondent’s behaviour that the petitioner deems to be unreasonable and this must be behaviour that has occurred during the course of the marriage. An example of the type of behaviours that can be included within a divorce petition are as follows: ‘the respondent is unwilling to spend time with the petitioner’s friends or family which causes the petitioner stress and upset. ‘the respondent has admitted to the petitioner that he has been engaging in a sexual relationship with another man which has caused the petitioner to feel betrayed and unloved.’

Clients are sometimes concerned that using behaviour as the fact of their divorce will lead to animosity between the parties and for this reason, it is considered to be good practice to send a copy of the draft behaviour particulars to the respondent prior to sending it to the Court. This keeps matters amicable between the parties where possible and reduces the chance of the respondent defending the divorce proceedings.

3. Desertion

Desertion is rarely used as it can be difficult to prove and often, one of the other facts will apply. In order to rely on the fact of desertion, the petitioner needs to demonstrate to the Court that the respondent has deserted them for a continuous period of at least two years.

The petitioner must show to the Court that the respondent deserted them with the intention to abandon the marriage and that they did not consent to the separation. It must also be established that there was no just cause for the respondent to leave and that the desertion has been continuous.

4. Two years’ separation with consent

If the parties have been separated for at least two years, a divorce can be granted if the respondent consents in writing to the divorce proceedings.

5. Five years’ separation without consent

Where the parties have been separated for at least five years, a divorce can be granted even if the respondent will not provide their consent.

We understand that divorce can be a confusing and difficult process for many people and we are happy to help in any way we can. It is usually advised to not delay the commencement of proceedings as this can have an impact on the financial positions of each party and can prolong the stress of the difficult decisions that clients are often facing.

Watson Thomas Solicitors have offices in Fleet, Guildford, Bracknell, Camberley, Farnborough and Woking.

Watson Thomas are a dedicated team of Family Lawyers who specialise in all aspects of family law. For advice about separation and divorce, please do get in touch.

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If you would like to discuss your current situation with an expert family lawyer, please call us on 0330 311 9849.

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