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Grounds for Divorce

Getting a divorce can be an uncertain, stressful time. If it is something you are considering, it is important to be familiar with the grounds you must use in order to get a divorce. Without a legitimate reason, you may not be able to get a divorce as you currently need to show that the marriage has irretrievably broken down and you must rely on one of the statutory grounds to prove this.  Having some understanding of the grounds may help you to gain a greater understanding of the process and better inform you in terms of the next steps you want to take.

There is a common misconception that there are several ‘grounds for divorce’ and this phrase is often used when someone describes the reason for a divorce petition being issued, for example, adultery or unreasonable behaviour. However, it is important to note that there is only one ground for divorce, and that is that the marriage has irretrievably broken down. In order to prove that this has happened, there are 5 reasons that you can choose from to evidence this.

Hawkins Family Law have years’ worth of experience in family law and can provide you with accredited legal advice on matters such as divorce. You can find out more here or get in touch with one of our team for more advice.

Otherwise, read on to gain a greater understanding of the reasons for divorce, and what that might mean for you.

What are the legal grounds for a divorce?

There are several reasons for divorce that will allow you and your partner to apply for a divorce. As mentioned above, there is only one ‘ground’ – the irretrievable breakdown of the marriage – that a couple can use to legally separate or divorce. To help determine that the marriage has reached this point, the following reasons have been strongly established as reasons for divorce:

  1. Adultery
  2. Unreasonable Behaviour
  3. 2 years separation, with the consent of your spouse
  4. 5 years separation, without the consent of your spouse
  5. Desertion

Adultery

In order to be able to use adultery as a reason for a marriage breaking down, the party who has committed the adultery must admit to it by signing a confession statement. If they will not do this, then evidence (or proof) must be provided that shows that adultery has been committed. As this if often difficult to obtain, using adultery as a reason is often avoided.

However, if you know that adultery has taken place, or even suspect that it has, but your spouse will not admit to it, then it is possible to include it as an example of unreasonable behaviour instead, citing a relationship with another person.

If you are at all unsure whether you can use adultery as a reason for marriage breakdown, then we recommend speaking to one of our family law solicitors for advice and guidance.

Unreasonable Behaviour

Unreasonable behaviour is the most commonly relied upon reason for a marriage breaking down.  You need to provide 4-5 examples of your spouse’s unreasonable behaviour and what the impact of that behaviour has been on you. We would advise that you keep the allegations of behaviour relatively mild – for example, devoting too much time to a career, or having no common interests. It is important to remember that the more severe the examples are that you give – such as excessive drinking or controlling behaviour – the more likely these are to inflame any ill feeling between you and your spouse. However, a fine balance needs to be found between examples of behaviour that are mild enough to keep matters relatively civil between you both, yet strong enough to ensure that they comply with the Court directions and that the Court will agree that you are entitled to a divorce.  Keeping the examples mild is also especially important if you believe your spouse may defend the divorce.

It is important to note that, whatever examples of unreasonable behaviour you include in your divorce petition, when the other party responds to the petition, they do not have to admit to any of the behaviour you have alleged in the divorce petition.

If you are unsure whether the examples of unreasonable behaviour that you would like to use in order to obtain a divorce are strong enough, then please contact us and one of our divorce lawyers will be able to advise you on this.

2 Years Separation with Consent

You can use this reason once you and your spouse have lived independently from each other for 2 years or more, and you both agree (consent) to a divorce.

In contrast to adultery and unreasonable behaviour (which are both ‘fault’ based reasons for a marriage breaking down), 2 years separation with consent is one of the ‘no-fault’ reasons. The advantage of using such a reason is that it avoids unnecessarily inflaming matters between you and your spouse, which could ultimately make the finances harder to agree.

It is not unusual for a couple to decide to wait for 2 years to lapse after their separate before applying for a divorce. If this is something that you would like to do, it is important to take legal advice from a family law solicitor, as waiting for a period of time before you apply for a divorce could have an impact on any financial settlement. During the 2 years that you are separated, your financial circumstances – and those of your spouse – could significantly change, meaning that any financial settlement you agree after you have been apart for 2 years could be very different to the financial settlement that you may have agreed shortly after you had separated.

It is possible for you and your spouse to reach an agreement in relation to financial matters when you separate and record this in a separation agreement. Although not legally binding, the Court can take this agreement into account when you eventually apply for a divorce and a consent order needs to be drawn up.

It is important to note that the Court cannot consider the any financial matters until the Decree Nisi [link to DN v DA blog] stage of the divorce is reached, and they will consider the financial situation at the time they are asked to deal with it.

5 Years Separation

The second of the current ‘no-fault’ reasons that can be given for a marriage breakdown is 5 years separation. The difference between this reason and 2 years separation is that you do not need your spouse’s consent (agreement) to a divorce.

However, just as with 2 years separation, it is important that you obtain legal advice from a family law solicitor before deciding to wait for 5 years to pass before applying for a divorce as it may have an impact on any financial settlement that is agreed. In addition, even though you do not need your spouse’s consent to the divorce, they could apply to delay the pronouncement of Decree Absolute (the final stage of the divorce) if it is likely to cause them severe financial hardship.

Desertion

In order to use desertion as a reason for a divorce to be granted, you must be able to prove you’re your spouse left without your knowledge, that you have no idea why they left and that you do not know where they are. Attempts must have been made to trace them and supplied with the evidence that they cannot be found. In addition, you need to provide proof that they intended to desert you.

It is because of the information that needs to be provided that desertion is very rarely used as a reason for divorce. However, if you think that you are able to use this reason, then we recommend talking to one of our divorce solicitors in order to make sure that all the criteria have been met.

What is the most common reason for divorce?

Assuming that ‘reason’ refers to the legal fact which is cited in the divorce petition, according to the Office of National Statistics, the most common fact (as of 2019 – latest available data) is unreasonable behaviour. This is likely because it is available to all spouses where the marriage has been of over 1 year’s duration. Three quarters of the remaining facts require at least 2 years’ separation before the petition can be filed.

Why does the divorce reason matter?

It doesn’t – it is a means to an end. A divorce can only be processed if one of the facts is proven.

Can you get divorced without a reason?

Not at the moment. In April 2022 the Government plans to bring into force the Divorce, Dissolution & Separation Act 2020 which will enable divorces to be granted on the basis of the irretrievable breakdown of the marriage, which one or both spouses confirm has occurred. No proof of a ‘fact’ or reason will be necessary.

Are adultery and infidelity the same thing?

Yes.

Is adultery still grounds for divorce?

Yes – it is one of the five facts. All of these will be removed when the new Act comes into force.

What is defined as adultery?

Strictly, under the law, adultery requires one spouse to have had sexual intercourse with a person of the opposite sex who is not the other spouse. The law does not recognise as adultery if the person engages in intercourse with someone of the same sex.

What proof do you need for adultery?

It is presumed that adultery has taken place when a spouse is living with a new partner. However, if they are not, and they deny that they have committed adultery, the spouse alleging adultery will need to provide proof. This is immensely difficult and often there is no proof to be found. Sometimes people will provide emails or screenshots of conversations, but these are often not sufficient to prove whether or not sexual intercourse has taken place.

In these circumstances, the court would generally list a hearing and, if possible, call as a witness the person with whom the adultery was allegedly committed. A Judge would listen to all parties and decide on the balance of probabilities whether adultery had taken place and, therefore, if a divorce could be granted.

What counts as unreasonable behaviour in divorce?

Anything and everything can be cited in a petition. The most important factor is the effect that the behaviour has had on the person applying for a divorce. In one historic case, a wife cited as behaviour that the husband tickled her feet constantly. A divorce was granted on the basis that the wife described the profound impact this had on her – making her feel on edge and unhappy.

Can you divorce whilst living in the same house?

Yes – in short. If you are citing behaviour or adultery as facts, you will need to confirm whether you have lived with the other person in the six months following the last incident of behaviour/adultery. If you have, you may not be able to obtain a divorce. If you cite separation, you can remain living together but need to be living completely separate lives – not even cooking meals for one another or doing the other’s housework.

If in doubt, speak to a legal advisor.

What if your partner won't consent to divorce after 5 years separation?

A divorce can be obtained without the other spouse’s consent if you have been separated for over 5 years.

What counts as domestic abuse, and is it a reason for divorce?

Domestic abuse has a wide statutory definition, as of 2021, and includes emotional abuse, threats and intimidation, physical abuse, financial abuse and coercive control. In divorce, generally, specific incidents would be cited in a behaviour petition.

Domestic abuse is a very serious crime and if you or someone you know is or has suffered this, please contact the police or an agency such as Refuge, Women’s Aid or Samaritans.

There are other legal implications and steps which can be taken to protect you and your children, so we would strongly urge you to seek legal advice in this situation.

What do I do if my spouse contests the divorce?

It would be sensible to speak with a legal adviser if this happens. Contested divorces are rare and can be expensive, with the potential for one spouse to pay the other’s legal costs in some circumstances. What to do next will depend on the specifics of your situation.

If you are contemplating a divorce and are not sure which reason would be the most appropriate for you to use, depending on your individual circumstances, then speak to one of our team today. Hawkins family Law are family law specialists, meaning we have years of experience with cases regarding divorce so we can provide you with reliable and accredited legal advice.

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