What are Legal Grounds for Divorce?

Author:
Fiona Snowdon
Partner, Regional Head of Family Law
Date:
09/01/2019

To get a divorce in England and Wales, you must show that your marriage has irretrievably broken down and this is the only available ground for divorce. In order to do this, you must base it on 1 of 5 possible facts to show that you have a good reason for applying for a divorce.

If you need help with your divorce application, get in touch with our Divorce Solicitors for initial advice.

Call us on 08002605010 or request a callback and we will help you.

The Legal Grounds for Divorce are:

  • Adultery
  • Unreasonable Behaviour
  • Desertion
  • 2 Years Separation with Consent
  • 5 Years Separation without Consent

Grounds for Divorce Explained

Adultery

Using adultery as a basis for divorce can be one of the quickest ways to get a divorce, but can be one of the messiest. This means you don't need to have been separated for a certain amount of time to get a divorce but you will need proof, an admission and you cannot have lived with it for over 6 months from discovery.

Example: David and Emily have been married for 6 years. Emily admits that she had an affair 10 months ago but quickly broke it off. David is furious and petitions for divorce.

To be able to rely on adultery, Emily's affair must have been a sexual relationship with someone of the opposite sex. In reality, she must be prepared to admit to the adultery in writing. So while this is a simple way forward, it’s only available if both people want to get divorced. Emily won't need to name the other individual involved or give any embarrassing details – in fact naming the other person would tend to increase costs as they have to then be involved.

There are time limits on how long you can rely on adultery as a basis for divorce. You have 6 months from the day that you become aware of the adultery (not the date of the affair) to be able to petition for divorce on the ground of adultery if you continue to live together.

Despite the time limit, Emily's written admission can refer to a date which she and David both agree was when the information was fully known, as long as it falls within the 6-month rule.  There may be more than one relevant date.

Adultery can only be used to petition for divorce by the wronged spouse. If Emily wishes to divorce quickly, but David doesn't, she may be able to use the basis of unreasonable behaviour. Similarly, if David wants a divorce but Emily doesn't want to put her adultery in writing, he’ll need to think about using unreasonable behaviour in his divorce petition and the “inappropriate relationship” can form part of the allegations.

Unreasonable Behaviour

You can cite unreasonable behaviour as a basis for divorce and this means you consider that their conduct has made them intolerable to live with.    

Divorce Solicitor Fiona Snowdon explains: "The Courts look at divorce petitions from the applicant’s perspective – this is what you find intolerable to live with. This is subjective and the examples do not necessarily have to be unreasonable to everyone's standard. In practice, the bar is set reasonably low, and most people can find something to grumble about in their husband or wife's behaviour which would be sufficient for the Court to grant a divorce.

"We use the term 'unreasonable behaviour' as shorthand but the law actually says, 'has behaved in such a way that you can't reasonably be expected to live with him/her', which is not quite the same thing.

"The single most popular specific complaint we encounter as Divorce Solicitors has to be that their spouse is ‘useless with money’. But other common examples of unreasonable behaviour that we’ve dealt with have included lack of a physical relationship, frequent arguments, not sharing childcare etc. It is important to note, however, that the behaviour doesn't necessarily need to be very serious - annoyances or the type of emotional distancing/lack of support which is common amongst couples on the road to separation can be sufficient.

"In truth, the Courts are not interested in trying to find out as a fact the real reasons why a marriage has broken down. The allegations are going to be accepted at face value in most circumstances unless they are challenged."

Call us on 08002605010 or request a callback and we will help you.

Desertion

Desertion can be used as a ground for divorce if your husband or wife leaves without a good reason or disappears. They must intend to end the relationship and the period of desertion must be for at least 2 years.

Example: Alex and Sophie have been married for many years and one morning Alex says he’s leaving and moves out. After a year, Alex comes back for a month but then once again decides to leave. After another year has passed, Sophie petitions for divorce on the ground of desertion.

Although Alex has come back within the necessary 2-year desertion period, they are allowed to live together for up to 6 months during the 2-year period and still rely on desertion as a ground for divorce.

Desertion is rarely used as the deserted husband or wife is more likely to rely on unreasonable behaviour for a quicker divorce.

2 Years Separation with Consent

Unlike adultery and unreasonable behaviour, the basis of 2 years separation for divorce is not based on fault. The married couple must have been separated for at least 2 years, and both must freely consent to divorce and agree in writing.

The main problem with grounds that are conditional on “time spent separated” is that people aren’t always willing to wait this long, especially as financial claims need to be dealt with. Amicable parties that both agree on getting a divorce often need to instead rely on a fault-based ground like unreasonable behaviour.

5 Years Separation without Consent

If one spouse wants a divorce but the other won’t consent, you can get a divorce without the consent of the other person if you’ve been separated for at least 5 years. This length of time can be problematic for some as you can’t remarry for some time or move on, and in reality, it’s very rarely used as a basis for divorce.

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