To get a divorce, the petitioner, the person applying for divorce, has to convince the court that the marriage has irretrievably broken down. To prove this, the petitioner must rely on one of five facts, commonly referred to as grounds for the divorce.
This video will provide you with an overview of the five grounds for divorce so you can choose the right one for your situation.
If you would rather read, here is a transcript of the video…
Choosing the right grounds for divorce
There are five facts used in divorce:
- Unreasonable behaviour
- Two years separation with consent
- Five years separation without consent
You’ve probably seen the latest news story about Nick Hancock and his affair with his aide. Most people think that adultery is having an affair. But in fact, adultery in the eyes of the law is sexual intercourse between a married man or woman with somebody of the opposite sex, and you can’t bear to continue to live with them.
So sexting, kissing, flirting are not adultery. And to use adultery, you can’t continue to live with your spouse for more than six months after finding out about it.
If you choose adultery as your grounds for divorce, and your spouse defends against that, even if they said that they would agree to it, you would have to prove that adultery took place, which can be quite difficult, bearing in mind that adultery is only sexual intercourse.
The second reason for divorce is unreasonable behaviour. This is the one that’s used the most, almost half of all women that apply for divorce use unreasonable behaviour. And about a third of men.
One of the reasons why it’s so popular is because this provides the quickest way to divorce. You don’t have to wait for two years. Unreasonable behaviour allegations can be severe or relatively mild. The court doesn’t look at the severity to decide whether or not to permit you to divorce.
You can use the usual things and patterns people go through when a marriage breaks down – poor communication, lack of intimacy, and living separate lives.
The important thing if you choose unreasonable behaviour as your grounds for divorce is that it has to be the behaviour of your spouse. It can’t be your own behaviour.
Desertion is hardly ever used. On average, there are around 90,000 to 100,000 divorces every year in England and Wales, and of that, less than 400 are for desertion. The reason being is it’s quite challenging to prove that it’s actually took place because you have to prove that the person who’s deserted you has deliberately abandoned you.
Two years separation with consent
Two years of separation with consent is the second most commonly used reason after unreasonable behaviour. While this typically means physically living apart, there’s an understanding, particularly at the moment when people have been stuck together in lockdown, that you can still live separately while under the same roof. But it is a bit of a grey area. If you lived together for 18 months, as an example, under the same roof, but separately, and finally moved out for six months, you could find that the court asks for evidence that you actually lived separately. This is something to look out for, and we will go into more detail on the separation video.
The other important point is that your spouse must agree to the divorce. When you file for divorce, your spouse will receive the papers. It will ask them if they agree to divorce on the grounds of two years separation. If they don’t agree to it, then your application stops right there.
So if you’ve got a situation where you think that your spouse might not agree to it, or they might change your mind, you shouldn’t choose two years separation with consent as your grounds for divorce.
Five years separation
Finally, there is five years separation without consent. Whereas with two years, you need your spouse’s agreement to the divorce, here you don’t, but that doesn’t mean it’s automatic. You still have to go through the same process. Your spouse still receives the divorce papers. This time it says that you want to divorce because of five years of separation.
The difference is that they can’t refuse it, but they can ignore the petition, which will delay and cause problems. So this option it’s not without its challenges in certain situations.
So why is choosing the right grounds for divorce important?
The main reason is to avoid delays or situations that can stop the divorce altogether. As mentioned, the court will throw out a case of adultery if you continue to live together for more than six months. Similarly, if you use two years of separation and your spouse disagrees with it, the application will be stopped.
That doesn’t mean that if you are in this situation, you can’t get a divorce. There are ways around it. So if you are in that situation, or if you’ve got any questions in general that you want to talk through, give us a call on 0204 530 8101 or drop us an email to ask a question or schedule a call back.