Grounds for Divorce
The purpose of this section is to brief you about the grounds for divorce in England and Wales and help you decide which ground you can choose, if you’re looking to apply for divorce. According to the law, it is mandatory to prove that “the marriage has broken down irretrievably”. The five grounds that you have to choose from, to prove that marriage has broken down irretrievably are also known as facts. You’re only entitled to divorce if you prove any of these five facts in court.
It is important to record your separation date. Separation agreement can be presented in the court if you later plan to apply for divorce.
Grounds for Divorce:
Adultery is a very serious issue. It means that the one of the party in the marriage has had sexual intercourse with opposite gender outside marriage. The person who has committed adultery cannot rely on it and apply for divorce, unless spouse has an issue with it. Also, this ground can only be used if your spouse has had sexual intercourse with the opposite sex. Sexual activity other than sexual intercourse would be covered in unreasonable behaviour (see below).
Other than proving adultery, it is also imperative to prove that petitioner finds it intolerable to live with the spouse (who has committed adultery). However, the intolerability element of the adultery is accepted by the court automatically, if it is proved that the defendant has committed adultery. To prove that the defendant has had sexual intercourse with someone, a witness, video recording or photograph should be presented to the court. Guilty party can also sign the confession admitting that he/she has committed adultery. Most of the time, the injured party wish to name the third party, with which defended has had committed adultery to ridicule him/her in the court. However, there are only few circumstances in which court allows to name the third party, because of certain reasons. Mostly, the divorce took place as the defendant submits that he/she has committed adultery with third party without naming.
There are also certain scenarios you need to consider, if you’re using this fact to apply for divorce. For example, your spouse has committed adultery and it has come to your knowledge that your spouse has had sex with someone. You didn’t apply for divorce for more than six months after discovering this. In this case, law will consider that you’ve forgiven your partner. The reason why law has given a time period of six month is to let the both parties settle it themselves and reconsider their decision of divorce.
You can also apply for divorce on a ground that your spouse has behaved in such a way that is unreasonable and abnormal and cannot be expected from a sane person. Financial incompetency, untruthfulness, lack of emotions and affection and many others which petitioner finds unreasonable can be used as unreasonable behaviour. More serious behaviour includes sexual relations (not adultery) with same or opposite sex, habitual drinking, domestic violence etc. Court will consider different factors related to unreasonable behaviour and then decide whether it is reasonable for the two to live together. For example, in case of mental illness, you need to present a medical report that confirms that your partner is mentally ill and cannot live a normal life. In such cases, it is usual that the court will succeed your petition on this fact.
The problem with using this fact as a ground of divorce is that you have to come up with certain allegations that your spouse may find controversial and unpleasant. This will halt cooperation between you and your partner. Making accusations like habitual drunkenness, domestic violence, improper sexual character, incapability to earn, will hurt your partner and he/she will try to defend the proceedings. Coming up with the allegations is one thing and proving them in court is another. Therefore, it is usually good for both of you to mutually agree on the allegations that are fairly mild and unlikely to cause offence to the either party. As both of the parties will agree on a common ground for divorce, the petition will not be defended.
Also read: What is abduction?
You can also file your petition for divorce on the basis of desertion. Desertion means that you or your partner has left you without your permission for two years and has never returned. You can also be deserted if your spouse and you share a same house. To prove desertion, it is mandatory that you and your spouse are physically separated and are no longer living together as a married couple. Besides physical separation, intent of permanently ending cohabitation is also necessary. Physical separation, as well as intention to live separately are two mandatory components to start proceeding using desertion, as a ground for divorce. It should be noted that the element of permission and consent is very important. Two parties separating with consent and on mutual agreement wouldn’t be considered as desertion.
If you want to file a petition in court using this fact as a ground for divorce, you must be deserted for 2 years. However, if you’ve changed your mind or reconsidered your decision, you can live with your spouse for a period of six month. This period of six months or less wouldn’t be counted in the period of desertion. If you’ve lived together with your spouse for more than six months, then court will consider that you’ve forgiven the spouse. In this case, court will not consider you earlier period that you lived apart with your spouse as deserted period.
Two years separation with consent means that you have lived separately for a period of two years and your spouse consents the divorce. No allegation or reporting of bad behaviour is necessary to prove in this. One party files the petition in court and the other party consents, instead of defending the proceedings. The rules to calculate the time period of two years are very same as discussed above, in case of desertion.
This ground is one of most prolonged ground for divorce, in which both parties are not willing to cooperate with each other. Consent of the spouse for divorce is not required in this case. Five years separation means that both parties have lived separately for five years without consent. Defending the divorce on this ground is mostly not possible. However, there are still few exceptions that court may consider before granting the divorce. A court may refuse to grant a divorce in a case, if the defendant is elderly and granting the decree would cause him/her to face severe financial hardships and dissolving a marriage is wrong in all circumstances. Therefore, it should be noted that it is not a right of a citizen to seek a divorce after five year separation. You still need to prove the necessary period of separation. The rules to calculate the time period are very same as discussed above, in case of desertion.
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