Back to Basics: What are Legal Grounds for Divorce?
To get a divorce in England and Wales it is necessary to show that your marriage has irretrievably broken down, and you must cite 1 of 5 grounds to show that you have a good reason for wanting a divorce.
So what are the legal grounds for divorce?
Using adultery as a basis for divorce can benefit people hoping for it to be concluded quickly. This ground means you don't have to wait for a specified period of separation to be able to divorce.David and Emily have been married for 6 years, but for the past year, David has noticed Emily becoming increasingly withdrawn. They argue one night and 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 will need to be willing to admit to the adultery in writing, so this is a simple way forward but it is only available if both now feel they want to have a divorce. She won't need to name the other individual involved or give any embarrassing details.
Strictly speaking, there are time limits on how long you can rely on adultery as a ground. You have 6 months from the day that you become aware of the adultery (doesn't need to be the date of the affiar) to be able to petition for divorce on this ground if you continue to live together. If you live separately, then the limit doesn't apply. Despite the time limit, Emily's written admission can always refer to any date which she and David both feel comfortable with, as long as it falls within the 6 month rule.
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 ground of unreasonable behaviour. Similarly, if David wants a divorce but Emily doesn't want to put her affair in writing, he will need to think about an unreasonable behaviour petition.
You can petition for divorce on the basis that your spouse has behaved unreasonably, and that you find it intolerable to live with them. John Pratley, our Head of Family Law based in Bristol, explains:
"The courts look at these petitions in a relatively flexible way. The behaviour doesn't necessarily have to be unreasonable to everyone's standard, it depends on what the petitioner thinks is unreasonable and intolerable to live with. In practice the bar is set very 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 when you think about it."
"The single most popular specific complaint I encounter has to be uselessness with money! Although other common examples of unreasonable behaviour that we have dealt with in the past have included physical violence, verbal abuse, and alcohol and drug abuse. It is important to note, however, that the behaviour doesn't necessarily need to be very serious - annoying personal habits or the type of emotional distancing 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 the real reasons why a marriage has broken down, and certainly not in trying to apportion responsibility for it."
Desertion can be used as a ground if your husband or wife leaves without a good reason or without the other party's agreement. They must intend to end the relationship and the period of desertion must be for at least 2 years.Alex and Sophie have been married for many years and one morning Alex says he is 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, you are allowed to live together for up to 6 months during the 2 year period and still rely on desertion.
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
Unlike the grounds of adultery and unreasonable behaviour, this fact is not based on fault. The parties to the marriage 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 are often unwilling to wait this long. 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
If one spouse wants a divorce but the other will simply not consent, you can get a divorce without the consent of the other person if you have been separated for at least 5 years. This might be the case, for example, if the spouse has religious reasons for staying married. This length of time can be problematic for some as you cannot remarry for some time, and in reality it is very rarely used.
What's The Verdict?
Organisations including National Family Mediation
are currently pressuring for a change in the law. The current law is criticised for increasing animosity as parties must find a fault to rely on, or else wait 2 years to finally divorce.
John, who is also a member of Resolution, explains:
"Because people don't want to wait another 2 years to be able to divorce, they have to try to find a reason to rely on either adultery or unreasonable behaviour. Sometimes people can struggle to find something to rely on, which can lead to some bizarre grumbles."
"The experts say marriage breakdown is a process and I think in reality, most people just drift apart and go off each other, and often wait until they've met someone else to bother with divorce. Most men are too lazy to leave their marriage until they meet someone they like better!"
"Divorce would be less acrimonious if people didn't have to find something to rely on, but we are yet to see if the law will respond to reflect this by introducing a no fault divorce process. In the meantime the courts do the best they can by setting the bar on 'unreasonable behaviour' petitions at a level which I think most non lawyers would be surprised by. But it still causes unnecessary upset and it should be changed. Most lawyers who work with separating and divorcing couples would agree with me there"
"This stuff about adultery and unreasonable behaviour actually goes back centuries to when divorces were granted by ecclesiastic courts in the Church. The law needs to be changed to reflect the modern reality, and help people through what is often a very sad and difficult period of their life."