This blog is part of a series of blogs on divorce and outlines the facts you can rely on to apply to the court for a divorce.

Karen Jeary -  author 'Grounds for Divorce'The only ground for a divorce in England and Wales is that the marriage has broken down irretrievably. When applying to the court for a divorce the person making the application (the petitioner) must rely on one of five facts listed within the Matrimonial Causes Act 1973 to prove the marriage has irretrievably broken down.

These are:

  • Adultery: – the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent.
  • Behaviour: – the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent.
  • Desertion: – the respondent has deserted the petitioner for a continuous period of at least two years immediately preceding the petition being sent to the court.
  • Two years separation: – the petitioner and respondent have lived apart for a continuous period of at least two years immediately preceding the petition being sent to court and the respondent consents to the petition on that basis.
  • Five years separation: – the petitioner and respondent have lived apart for a continuous period of at least five years immediately preceding the petition

The only facts that are able to be used as grounds for divorce immediately are adultery and behaviour. All others require a period of time to pass prior to the divorce process being started.

In an undefended divorce, the court will generally accept the statement in the petition as sufficient proof of the irretrievable breakdown and will not enquire further.

Adultery

In summary adultery is defined in law as having sexual intercourse with a person of the opposite sex whilst being married to another person.

Divorce petitions relying on adultery must be on the basis that the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent.

It is no longer necessary to actually name the third party with whom the respondent committed adultery.

A divorce based on adultery can simply proceed if the respondent admits to the adultery having taken place. Should the respondent not agree to admit the adultery, rather than pursue a defended divorce which is costly and time consuming, it can be advisable to base the petition on the behaviour fact and refer to the relationship with a third party.

There are two instances when the fact of adultery can not be relied upon;

  • Firstly, where the spouses live together in the same household for any period or periods of time exceeding six months after the petitioner became aware that the respondent had committed adultery, and;
  • In a same sex marriage where the conduct has been between the respondent and a person of the same sex. This is due to adultery being defined in legislation as only relating to conduct between persons of the opposite sex. In such circumstance the behaviour fact may be used.

Behaviour

 Irretrievable breakdown of the marriage may be proved if the petitioner can satisfy the court that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent.

What constitutes behaviour can be summarised as an action by the respondent that affects the petitioner and ranges from irritating habits at one end of the scale to domestic abuse at the other.

Divorce petitions based on behaviour are one of the most common. Although almost any behaviour that the petitioner finds unacceptable can amount to behaviour that can be relied on to proceed with the divorce, careful consideration should be given to the examples provided.

When considering the examples of behaviour it is always advisable to concentrate on giving a few examples of the type of behaviour relied upon with specific examples and dates where appropriate.

There is generally no need to have numerous inflammatory particulars that only serve to make the relationship between the parties more difficult.

Consideration should also be given to providing the respondent with a draft copy of the petition with a view to agreeing the behaviour that is to be relied on and minimising any conflict.

Desertion

It is rare for a divorce petition to be based on the fact of desertion due to the difficulties that might arise in proving this fact. Whilst there is no definition of desertion, the fact would apply in circumstances where the respondent has deserted the petitioner for a continuous period of at least two years immediately prior to the petition for divorce being filed with the court.

In order to prove desertion, the petitioner must demonstrate the following:

  • That there has been a physical separation between the parties in that they no longer live in the same household.
  • That the respondent had the intention to desert the petitioner. Intention can be established from the mindset of the respondent whether they no longer considered they were married and had no plans to return to live with the petitioner. In certain cases where there is no clear evidence of an intention to desert, the court can infer an intention from the respondent’s conduct. The conduct must, however, clearly suggest an intention to bring living together permanently to an end. Desertion begins from the moment that one of the parties forms the intention to bring living together permanently to an end.
  • That the petitioner did not consent to separation from the respondent, if the petitioner agrees to the separation desertion can not be established.

The above elements have to be present simultaneously for two years immediately prior to the petition for divorce being filed with the court. The two-year period must be continuous, therefore several periods of separation can not be added together to form the two year period. 

Two Years Separation

Divorce petitions based on the fact of two years separation require the petitioner and respondent to have lived apart for a continuous period of two years immediately preceding the petition being filed with the court. In addition, the respondent must consent to a divorce based on two years separation.

The two-year period must be continuous and no account will be taken for a period or periods of time not exceeding six months that the parties reconciled and lived together in the same household.

The parties may have lived in the same house during this time, but been leading separate lives in separate households. It can be possible to demonstrate that they are living apart even whilst living under the same roof if they have for example been having separate meals, undertaking their own household chores, holidaying separately and have separate financial arrangements.

In the absence of no fault divorce a petition based on two years separation with consent is the most amicable way to proceed with the process. However, this is not always a financially viable option for those considering divorce to wait for two years separation, it will impact on the ability to resolve financial claims and there can be significant tax consequences.

Five Years Separation

A petition based on five years separation requires that the parties have lived apart for a continuous period of at least five years immediately preceding the petition being filed with the court.

The principles are broadly the same as with a petition based on two years separation with the exception that consent is not required.

At first glance it could appear that, apart from the lengthy time period, a petition based on five years separation is relatively straightforward.  This may be the case unless the respondent chooses to oppose the ending of the marriage on the grounds that to do so would result in grave financial or other hardship and that it would be wrong to end the marriage. Opposing the ending of the marriage is rare and can be very difficult to prove.

Further information regarding the divorce process can be found within our step-by-step guide to divorce which sets out the practical considerations to take into account prior to making an application for divorce.

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