As I said in my last blog, there is only one ground for divorce: the irretrievable breakdown of the marriage.
However, in your divorce petition you will be required to show at least one of the following five facts in order to prove this breakdown. As with lots of things grounds for divorce are not quite as straight forward as they first seem.
Adultery is voluntary sexual intercourse between a man and a woman, one or both of whom are married. Sexual relations between same-sex couples, or intimacy that falls short of full intercourse, does not count as adultery (and as a result, there is no fact of adultery in the dissolution of civil partnerships; instead, sexual unfaithfulness is deemed unreasonable behaviour, see below). To rely on the fact of adultery, you must show that a) your spouse has committed adultery, and b) that you find it intolerable to live with him or her (though not necessarily just because of the adultery). Because of clause b), you can’t use this fact if you continue to live together for more than six months after finding out that your spouse has committed adultery.
This fact relies on proof that your spouse behaves or has behaved in a manner that means you can’t reasonably be expected to continue to live with them. Note that unreasonableness or unacceptability of a spouse’s behaviour is based on your perception rather than on what a ‘reasonable person’ might be expected to put up with. What might be regarded as acceptable by others might be utterly intolerable to you. Again, if the last instance of this behaviour was more than six months ago, this fact can’t be used to prove ground of divorce.
To rely on this fact, you have to prove that your spouse has deserted you and you have lived separately for the whole of the last two years. Desertion has to be a deliberate act by your spouse, with no consent by you, and for no just cause.
4: Two Years’ Separation
In order to use this fact to prove that the marriage has irretrievably broken down, you and your spouse have to have been living in separate households continuously for the past two years. ‘Separate households’ doesn’t necessarily mean separate houses, but it does assume you were not living together communally (for example, sharing household tasks or funds, eating or sleeping together). In addition, at least one of you must have reached the conclusion that the marriage was over at or before the time of separation, and whoever is the respondent must consent to the divorce. If there is no consent, you will have to wait for five years’ separation.
5: Five Years’ Separation
The ‘five year’ fact relies on proof that you and your spouse have lived separately for a continuous period of at least the last five years. Separation is defined the same way as a two year separation, but at five years there is no need for consent. This is the only resort for someone whose spouse has done nothing wrong and who refuses to consent to a divorce.
These are the five facts that you can rely on as proof that your marriage is over and give you adequate grounds for divorce. However, there are some bars to divorce, even if at least one of these facts can be proven; of this, more in my next post.