To apply for divorce, you will have to show there has been an irretrievable break down in your marriage. This is the only ground for divorce under current law in England and Wales and it must be evidenced in the divorce petition by reference to at least one of five ‘facts’.
5 Facts that establish grounds for divorce
Fact 1: Adultery by your Spouse
You must be able to evidence that your spouse has had sexual intercourse with someone else of the opposite sex.
There are a number of additional conditions that must be met to satisfy this fact.
You must establish that as a result of the adultery, you find it intolerable to live with your spouse.
Note also that under the current law, if the person with whom your spouse had sex is of the same sex as your spouse, this is not recognised as adultery, but is instead classed as unreasonable behaviour.
If you are unable to prove full sexual intercourse took place or your spouse refuses to make an admission, it may be advisable to rely on the fact of unreasonable behaviour.
You will not be able to apply the fact of adultery if you continue to live with your spouse for more than six months after you learned of the adultery. The six-month limit does not apply if you no longer live together. You cannot file for divorce by reason of your own adultery.
Fact 2: Unreasonable behaviour
The most common fact for grounds for divorce, unreasonable behaviour covers extensive reasons for marriage breakdown. It requires a spouse to prove it is no longer possible for them to live with their spouse due to specific behaviour(s), as detailed in the petition by the petitioning spouse (the spouse filing for divorce).
Examples of unreasonable behaviour could include:
- Alcohol abuse
- Financial gambling
- Threats of violence
- Substance abuse
- Refuses to seek employment
- Ill-treatment of children
- Cultural differences
- Anti-social behaviour
- Living separate lives due to changes in career or interests
There is no arbitrary requirement on the number of behaviours to be cited, however as a general rule, the more ‘minor’ the impact of the behaviour, the more reasons you will need to provide. Conversely, issues of violence for example do not need to be multiple.
An experienced divorce lawyer can advise whether your spouse’s behaviour does fall under this fact.
In many circumstances, it may be advisable to agree the unreasonable behaviours cited under this fact with your spouse in advance of issuing proceedings. This can help to avoid protracted and exacerbated disagreements and keep the focus on ending the marriage as amicably as circumstances allow.
Fact 3: 2 years separation with consent
This fact is as close to ‘non-fault’ divorce as the law currently allows in England and Wales.
This fact applies where you have been separated from your spouse for more than two years and you both agree to divorce. ‘Separation’ can apply whether you have lived in the same residence or in different residences for this two year period.
Proof is needed that you both agree to this ‘fact’ for the breakdown of your marriage and that you have both lived independently for this time period, even if you have both been living together.
Fact 4: 5 years separation without consent
If you and your spouse have been separated for more than five years, you can use this fact without the agreement or consent of your spouse.
If you do not know where your spouse is and there has been no contact for five years or more, the court may request you evidence that you have tried all reasonable avenues to obtain this information.
If you are unable to find your spouse you will be required to file a ‘Statement to Dispense with Service of Divorce’.
If you have evidence that your spouse is presumed deceased, you will need to complete Form D8D, along with the appropriate fee. No divorce petition will be required in this instance.
Fact 5: Desertion
If your spouse left you without consent and you have lived apart for two years continuously or more, this may be classed as ‘desertion’. This can be difficult to prove if your spouse has said they worked away for two years and then can be seen as ‘two years separation’. The evidence has to prove the ‘intent’ to desert.
Next steps in the divorce process
The completed divorce petition, which includes the detail on the grounds for divorce, is then filed at court.
Before you can make the application for the Decree Nisi, your spouse will receive the petition and will have the opportunity either to contest or to admit to the grounds you have submitted.
Fault or non-fault?
Under current rules, where a couple both consent to divorce, they must either wait for two years of separation or identify a fault-based fact such as unreasonable behaviour as the legal basis of their divorce. This can place emphasis on acrimonious aspects of a breakdown rather than facilitating and enabling a separated couple to move on.
There is considerable movement and pressure for change to the current rules on grounds for divorce as they do not easily accommodate amicable, timely, non-fault divorce.
Reform is currently being called for to enable divorcing couples the option to divorce on a non-fault basis without the protracted time requirement.
Do you have a question about grounds for divorce?
For the divorce process to proceed, you must ensure you have filed the divorce petition correctly, which includes identifying and evidencing the appropriate fact(s) that establish grounds for divorce.
There may also be wider considerations at play which will influence which of the facts you should rely on.
Taking advice from an experienced divorce solicitor will help you to approach the divorce petition with full consideration and ensure your best interests are upheld.