Grounds for Divorce - Divorce Lawyer's Guide

13-Dec-2011

Grounds for Divorce

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

In England and Wales you can only divorce if you have been married for at least one year.

You can prove irretrievable breakdown as a ground for divorce by establishing one or more of the following “Facts” for divorce:-

Adultery

You must prove either through actual admission or sufficient circumstantial evidence that your spouse has had voluntary sexual intercourse with a person of the opposite sex and that you find it intolerable to live with your spouse.

It is not possible to commence divorce proceedings on the basis of your own adultery.

It is not easy to prove adultery. If there is actual evidence, such as the birth of a child, this can be relied upon. If your spouse is willing to admit adultery by signing an Admission Statement there is also no difficulty.

If you have lived with your spouse for more than 6 months after you discovered the adultery, you cannot use it as a basis for divorce. However, if the adultery is ongoing whilst you are still living with your spouse, then the 6 month window only starts to run from the date you discovered the last act of adultery.

However, unless the adultery is admitted or can be proven, it is sometimes better to base your divorce proceedings upon Unreasonable Behaviour (see below), with your spouse’s relationship with another person being referred to in the divorce papers as an example of ‘unreasonable behaviour’.

Unreasonable Behaviour

You must show that your spouse has behaved in such a way that you cannot reasonably be expected to live with them. In an unreasonable behaviour divorce petition, the person commencing the divorce proceedings (the Petitioner) sets out a number of allegations against the Respondent (the spouse).

These allegations can be wide and varied and usually take the form of allegations regarding excessive drinking, financial extravagant or domestic abuse. However, less extreme allegations can include failing to pay you enough attention or failing to support you in your career.

The unreasonable behaviour allegations need to be strong enough to ensure that a District Judge will agree that they warrant a divorce. However, the nature of such allegations can give rise to further acrimony and therefore it is important that the allegations are drafted with caution.

2 Years’ Separation (with consent) and 5 Years’ Separation

To base your divorce on one of these facts, it is necessary live separate and apart for either 2 or 5 years. If you have lived separate and apart for 2 years and your spouse provides consent, you can proceed with a divorce on this basis. If you have lived separate and apart for 5 years or more you do not require the consent of your spouse to the divorce.

If you live in separate households it can easily be assumed that you live separate and apart for the purposes of divorce proceedings. Even if you live in the same household it is still possible to live separate and apart provided you sleep in separate rooms, do not eat together, do not do household chores together etc.

Desertion

You must show that your spouse has deserted you without your consent for a continuous period of at least 2 years.

To prove desertion you must show that cohabitation has ceased. The cohabitation must have been brought to an end by your spouse without your consent and your spouse must not have any reasonable cause to have stopped cohabiting with you.

This fact is almost never used. It is relatively technical and it is usually easier to proceed with a divorce on an alternative basis such as 2 or 5 years separation or unreasonable behaviour.

To discuss grounds for divorce with our divorce lawyers contact Lisa Kemp.

---