The Grounds for A Divorce in England & Wales
In order to start divorce proceedings in England or Wales, you need to have been married for at least 12 months.
One party must also live in England or Wales, or if living abroad, must see England or Wales are their permanent home.
The person who starts divorce proceedings (known as the Petitioner) must then prove to the court that the marriage has irretrievably broken down by establishing one of the five available grounds for divorce.
You must prove that either through actual admission or through sufficient circumstantial evidence your spouse has had sexual intercourse with another person of the opposite sex and that you find it intolerable to live with your spouse.
If a sexual liaison short of sexual intercourse has taken place, it's suggested that the unreasonable behaviour ground is used as you cannot proceed on the grounds of your own adultery.
Adultery can be used as the basis for a divorce petition whether you and your spouse are still living together or have separated, but in either case not more than six months must have elapsed since you became aware of the adultery before the petition is sent to the court, unless the adultery is continuing.
2. Unreasonable Behaviour
You must show that your spouse has behaved in such a way that you cannot reasonably be expected to live with him or her.
Unreasonable behaviour is the most commonly used reason on which to prove the ground for divorce in England and Wales.
In an unreasonable behaviour petition, the petitioner sets out a number of allegations against the respondent.
These allegations might include references to excessive drinking or financial extravagance, for example; but it's worth bearing in mind that the court doesn't insist on really severe allegations of unreasonable behaviour in order to grant a divorce.
Relatively mild allegations such as devoting too much time to a career, having no common interests or pursuing a separate social life may well suffice.
Using mild allegations may also make it easier to agree the contents of the petition with your spouse before you issue it.
Please Note: You need to provide sufficient reasons as to why your marriage can no longer work, which we will help you do when drafting the divorce petition as part of our Managed Divorce Service for £189.
Where your spouse deserted you without your consent for a continuous period of at least two years; this ground for divorce is almost never used as it requires the mental intent to divorce throughout the two-year period, which can be very difficult to prove.
4. Separation of 2 years with consent
By consent you and your spouse have been living apart for at least two years, immediately preceding the presentation of the petition (or 'Initial Writ' in Scotland) and you both agree to a divorce.
If you are separated but still living togehter for financial reasons of because of children, you must show the court that you've been living separated lives, which can be difficult.
You can still get a divorce, but you may need to explore using another ground for divorce to base your divorce on, such as unreasonable behaviour.
5. Separation of 5 years (no consent required)
You and your spouse have been living apart for at least five years immediately preceding the presentation of the divorce petition. In this instance, your spouse need not consent to the divorce.
However, they can hold up the final decree if they believe they would be financially worse off, but this is very uncommon.
It's also important to note that you need to know the address of your spouse, otherwise the proceedings can become more complex, costly and longer; we can also help you with this, so fear not.
There are caveats to using the 5 year separation rule so if you are unsure how it works and what's involved, it's best to call us on 01793 384 029 to find out more.
More information on the grounds for Divorce
As you can see, depending on your individual situation, choosing the right ground for divorce to base your divorce on can be complex and will require some thought.
For example, if your spouse isn’t prepared to name the person he/she committed adultery with or indeed admits that it happened, you would need to consider using other grounds to prove the breakdown of your marriage.
2 years separation with consent is possibly the most amicable and quick way to obtain a divorce, but this does require a level of agreement that isn’t possible for every couple.
If you cannot agree to a 2 years separation divorce, you would need to consider filing for divorce using unreasonable behaviour, or waiting until you’ve been separated for 5 years, which may be too long for you to wait.
Final thought; we’d advise calling us on 01793 384 029 and speaking to an advisor about the process involved with filing for divorce using each ground.
How can Divorce-Online help you with your divorce?
We can also advise you on your grounds for divorce and assist you with preparing more complicated divorce petitions involving unreasonable behaviour and 5 year separation without an address.