Overview of the Grounds for Divorce in England & Wales
In order to start divorce proceedings in England or Wales, you first need to have been married for at least 12 months.
To file a divorce petition against your spouse you must prove to the court that your marriage has irretrievably broken down by establishing one of the following 5 facts:
- Unreasonable Behaviour
- Separation of 2 years with consent
- Separation of 5 years - no consent required
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.
Where your spouse deserted you without your consent for a continuous period of at least two years; this reasons 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.
3. 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 now the most commonmly 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.
Examples of Unreasonable Behaviour can include;
- Your spouse has threatened you with physical violence or has been physically abusive.
- Your spouse has been verbally abusive towards you.
- Your spouse drinks to excess, and when he is under the influence of alcohol he behaves in an unreasonable and aggressive manner.
- Your spouse is financially irresponsible, and has failed to maintain your and/or the children properly during the marriage.
- Your spouse has formed an improper relationship with a woman whose identity is unknown.
- Your spouse refuses to discuss the issues within the marriage with the Petitioner.
- Your spouse does not want to engage in any sexual or physical relations with the Petitioner.
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.
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.
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.
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.
Just give us a call on 01793 384 029 and an advisor will be able to assist you.