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Grounds for Divorce

Essentially, in England and Wales, if you wish to submit a divorce petition (Form D8, or D8A if children are involved) to a county court then you need to evidence that one of the following grounds for divorce has occurred:

(1) Adultery;

(2) Unreasonable behaviour;

(3) Desertion – for a period of no less than two (2) years;

(4) You have lived apart for at least two (2) years (uncontested divorce);

(5) You have lived apart for at least five (5) years (contested divorce).

Adultery and unreasonable behaviour are the only two ‘instant’ grounds for divorce in England and Wales.

Adultery

If you are considering citing ‘adultery’ as the grounds for your forthcoming divorce then you should be aware of the following four factors:

(1) Option is only available to the non-defaulting party, i.e. the person not having the affair;

(2) Option is only available if sexual relations have taken place (and can be proved);

(3) if you can prove that an extra martial affair has taken place, and you want to petition on the grounds of adultery, you must do so within six months of the affair taking place [note: this is not of your becoming aware of the affair, but of the affair happening];

(4) The extra martial sexual relationship must have been with someone of the opposite sex.

(5) If you are unable to satisfy this test, you need to be considering one of the alternative grounds for your divorce. Finally, remember that while it may seem appealing to name the third party in your court petition, if you do so they’ll become a party to the divorce – which will likely delay the process.

Unreasonable Behaviour

Although ‘unreasonable behaviour’ sounds a rather catch-all way of obtaining an instant divorce, unfortunately the courts have imposed a strict two-part test if you wish to invoke this reason:

(1) There must have been an irretrievable breakdown of the marriage; and

(2) The non-petitioning party must have acted in such an unreasonable manner the petitioning party can no longer tolerate living with them.

That said, today the courts take a more liberal view of ‘unreasonable behaviour’ and recognise that if you’re citing this as grounds for divorce, chances are the divorce has irretrievably broken down.

Desertion

An uncommon ground on which to divorce these days, desertion requires a party to ‘walk out’ on the marriage with the intention to never return. As intention is extremely difficult to prove, this ground is rarely used today. Moreover, as desertion can hardly be ‘contested’, it is made redundant by fact of a petition for an uncontested divorce based on two years separation (consented).

Two Year Separation (consented)

A popular choice for divorces involving children or sizeable assets, arguable the only amicable divorce option available. That said, although the divorce may be friendly initially, there are two factors you need to consider:

(1) if, having lived apart for any period of up to two years (say, 18 months), the divorce suddenly becomes contested (say you have a new partner), then it is likely you will need to live apart for five years; and

(2) Any assets you acquire during the two years you live apart will be included in the division of your assets on divorce.

Five Year Separation (contested)

If your spouse has contested your divorce and you have subsequently lived apart for five years, you can petition the court for divorce regardless of their feelings. Nevertheless, although you may think this is an absolute ground for divorce, you should bear in mind that even here your spouse may have grounds to defend your petition. Thus, if things are so bad that this is the only option available to you, it is strongly recommended you seek the advice of a divorce solicitor.