What are the grounds for divorce?

30 December 2015

Find out the five grounds, or facts, for divorce that the courts consider legal reasons for divorce.



Technically, in legal terms, there is only a ground for divorce, no plural, and it has to fall under one of five ‘facts’, contained in the 1973 Matrimonial Act. The result of a divorce case, like any other case brought before a UK court, depends on proof. As far as a divorce case is concerned, it is not a matter of guilty or not guilty (however aggrieved the various parties may feel) but that a marriage has ‘irretrievably broken down’.

These are the five facts on which the court in England and Wales considers the evidence in – Adultery, Two-year Separation, Five-year Separation, Desertion, Unreasonable Behaviour. These can vary in Scotland and Northern Ireland.

Considering a divorce? Understand the implications of divorce.

Adultery

The latest figures from the Office of National Statistics (2011) say that 15% of divorce cases in England and Wales were as a result of adultery, which is defined as a sexual relationship with someone outside the marriage of the opposite sex. A sexual relationship outside the marriage with someone of the same sex is not, in law, adultery. Instead, it would come under Unreasonable Behaviour.

If you wish to seek divorce on the grounds of adultery, you must act within six months of discovering the fact, not within six months of the act taking place, and have remained living together. Should you fail to act then the law deems it that you have ‘condoned’ the act.

Do not think that by having sex with the person, say, who you wish to marry after the end of your current marriage, you then can file for divorce on those specific grounds in order to speed matters along. You cannot. You cannot sue for divorce on the grounds of your own adultery. At the very least, ‘cake’ and ‘eating it’ come to mind.

There is no guarantee either that the ‘offended party’ will necessarily seek or grant a divorce on the grounds of adultery.

It is no longer necessary for the ‘third party’ to be named in the divorce petition. The days of having to name the co-respondent, introduced in the Matrimonial Causes Act of 1857, have ended. If the third party is named, then the legal papers have to be served on them as well, which will inevitably draw out the proceedings, and probably displease the judge, too.

Two-year separation

As quick and ‘blame free’ as it gets. You must have lived apart and lead separate lives for a minimum of two years before submitting a petition for divorce. The spouse seeking the divorce must show the consent of the other party. The court has no interest in the ‘whys’ of the situation.

You can live under the same roof if financial constraints show that it was impossible for you to move out (having to pay both rent and mortgage, for example). You must show that you lived separate lives – had separate bedrooms, ate meals at different times, paid for bill out of different bank accounts etc.

Find out how a trial separation could help your marriage.

Five-year separation

You have lived apart for five years. This is, in effect, a defenceless petition as you have demonstrated that you have lead separate lives, living apart, for a considerable and consistent amount of time. Like the Two-year Separation (above), you can still apply despite living under the same roof, providing you provide accurate records of your running a separate household.

Desertion

One of the married party has deserted the other without notice or consent and been away for two years out of a continuous period of two and a half years. If the absent spouse will agree, it’s better to try for a divorce under the Two-year Separation. The ONS stats bear this out as less than 1% of divorces are heard under the desertion flag.

Unreasonable Behaviour

This is a very wide-ranging category under which a great many later age divorces are granted. According to Relate, 54% of divorces granted to women come under this heading and 36% granted to men.

The category means that you find it impossible to live with your spouse due to just that, their ‘unreasonable’ behaviour’. It covers an extremely wide range, from violence and domestic abuse (emotional, physical, sexual) to deliberate financial mismanagement, substance abuse, unsettling mood swings, emotional isolation – even persistently (though not necessarily deliberately) buttering the toast and then putting the crumb-encrusted knife back into the butter, knowing it causes distress.

Find out the most common reasons for divorce.

Useful links

For further information visit www.gov.uk/divorce

There are differences in divorce law between England & Wales and Scotland and N Ireland.

For further information on Scottish divorce laws, visit www.scotcourts.gov.uk and for divorce laws specific to Northern Ireland visit www.courtsni.gov.uk.

The opinions expressed are those of the author and are not held by Saga unless specifically stated.

The material is for general information only and does not constitute investment, tax, legal, medical or other form of advice. You should not rely on this information to make (or refrain from making) any decisions. Always obtain independent, professional advice for your own particular situation.