If you’re looking to get a divorce in England and Wales, you will need to know the grounds by which you can petition for a divorce. If you have been married for more than 12 months, then you can start divorce proceedings. Keep reading to find out everything you need to know about the grounds for divorce and how they are used.
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Why there’s technically only one ground for divorce
In England and Wales there is technically only one ground for divorce. This is:
that your marriage has irretrievably broken down
In order to prove the irretrievable breakdown of your marriage, you will need to establish one of five facts:
- Unreasonable behaviour
- 2 years’ separation with consent
- 5 years’ separation without consent.
Keep reading for a full explanation of these reasons below.
Why you should not worry about the grounds for divorce
To get a divorce in England and Wales, you must prove that your marriage has irretrievably broken down.
The ground for divorce is generally an academic stage in this process. As a ‘no-fault’ divorce is currently not an option in England and Wales, one spouse will have to provide reasons why the marriage has broken down, and this often attributes blame or wrongdoing to one of the spouses.
As the most common ground for divorce is ‘unreasonable behaviour’, it is natural for you to feel concern that you have been accused of being unreasonable. It may also cause additional friction between you and your spouse.
However, as you will see later, the reasons cited are typically a means to an end to secure a divorce and must be provided within the divorce petition. They generally don’t affect the outcome of the divorce, or any financial or childcare settlement. Read more below.
The grounds for divorce
‘Unreasonable behaviour’ is by far the most common reason given as a ground for divorce in England and Wales.
If you are petitioning for a divorce citing unreasonable behaviour, you will have to provide a number of allegations or examples of your spouse’s behaviour. These must satisfy the court that your spouse behaved in such a way that you find it intolerable to continue living with them.
The allegations can range from mild (for example, spending too much time at work) to extreme (for example, excessive drinking or running up debts). See more examples below.
What constitutes unreasonable behaviour?
Common examples of unreasonable behaviour cited in divorce petitions include:
- Your spouse pursues their own separate social life, or socialises excessively
- Unreasonable sexual demands, or a lack of sex
- An inappropriate relationship with a third party
- Domestic abuse
- Running up debts or overspending
- Verbal abuse
- Excessive alcohol consumption or drunkenness
- Excessive gambling, online gaming, and use of social media
- Lack of support around the house or in your career.
There are many cases where there may not have been any extreme behaviour. You may then have to provide examples of less serious behaviour such as:
- Working long hours
- Preferring to spend time with a pet or friends
- Bossy or dictatorial behaviour
Even excessive DIY has been used to show unreasonable behaviour.
When you draft the reasons for unreasonable behaviour you should be careful not to aggravate an already emotional situation. If you make strong accusations against your spouse, it could make your situation worse and have a negative impact on both the process and your children.
Solicitors suggest that best practice is to agree the content of any unreasonable behaviour allegations before the divorce petition is submitted.
Is there a time limit for citing unreasonable behaviour?
If you carry on living with your spouse for more than 6 months after the last incident of unreasonable behaviour, the court may refuse to grant your divorce petition.
If you are still living with your spouse but you lead separate lives, then this 6-month period may not apply. You will have to demonstrate that you sleep in different beds, that you eat different meals and that your lives are entirely separate.
Do I need to give examples of unreasonable behaviour?
The court will need proof that your marriage has irretrievably broken down. You will therefore have to provide some specific examples about what this behaviour entailed, when it happened, and how it made you feel.
- “I have not had sexual relations with the other party for two years”
- “My spouse ran up gambling debts of £1,500 between April and October last year. This had an impact on our household finances and made me feel…”
- “My spouse stopped socialising with me in December. This led me to feel…”
Can the court challenge whether behaviour is unreasonable?
There is no threshold for unreasonable behaviour. What one person finds unacceptable may be completely normal to someone else.
This means that unreasonable behaviour is rarely challenged in the courts. Most divorces go through uncontested, without either spouse defending the divorce.
However, it is possible for the courts to refuse to grant a divorce if you cannot prove unreasonable behaviour. In a high-profile case in 2018 (Owens v Owens), Mrs Owens provided evidence ‘that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent’.
However, Mr Owens defended the case, and argued that the examples given of his behaviour were not sufficient to satisfy this test. Although the judge found that the marriage had broken down and that Mrs Owens could not continue to live with Mr Owens, he found that a petitioner’s allegations were ‘flimsy’ and ‘exaggerated’ and dismissed the divorce petition.
What if I don’t agree with the unreasonable behaviour cited in the divorce?
If you receive a divorce petition that has outlined your unreasonable behaviour, then it is natural that you may be upset. Your immediate reaction may also be to defend yourself against these claims.
You should remember that the court does not have to establish whether the allegations of unreasonable behaviour are true. They simply have to decide if your marriage has irretrievably broken down.
Citing unreasonable behaviour is often a means to an end when couples do not want to wait two years before divorcing. Contesting the accusations won’t do much to help your case and could just end up costing you time and money. Bear in mind also that the divorce petition is confidential and so no-one else will see the reasons cited for the divorce.
A common misconception people have is that if they do not defend themselves against unreasonable behaviour accusations it will be detrimental to their financial or childcare agreement. However, in the overwhelming majority of cases this is simply not the case. Read more about this below.
After unreasonable behaviour, adultery is one of the most common reasons given for the breakdown of a marriage.
What is considered adultery?
Adultery takes place when your spouse has sexual intercourse with a member of the opposite sex and, following this event, you can’t continue to live with them.
It’s important to remember that civil partners and same-sex spouses can only use adultery as a ground for divorce if either party had sexual intercourse with a member of the opposite sex. There is no ground for divorce relating to a spouse cheating on their partner with a member of the same sex.
What is not considered adultery?
For adultery to be cited, full sexual intercourse must have occurred between your spouse and another party.
Adultery does not include kissing, foreplay, webcam or virtual sex. It also must be between members of the opposite sex.
How do I prove adultery?
As you have to evidence that your spouse had sexual intercourse with another person, it can be difficult to prove. It’s rare that you will have seen it yourself or that you have a witness to the act. Simply suggesting your spouse is having an inappropriate relationship won’t be sufficient grounds.
The main way to prove adultery is for your spouse to admit to it. In this case the judge will not have to apply any discretion to your case.
If they won’t admit to adultery and you don’t have evidence, you can still proceed with your divorce petition, but you may have to cite unreasonable behaviour as the reason.
Do I have to name the other party in an adultery case?
No. While it is possible for you to name the other party as a ‘co-respondent’ on the divorce petition, this is rarely done in practice. The paperwork generally refers to an ‘unnamed man/woman’.
Direction in the 2010 Family Procedure Rules states that the other party should not be named unless you believe your spouse will contest the proceedings.
Is there a time limit for petitioning for a divorce citing adultery?
Yes. Whether you are separated or still living with your spouse, you must send the petition to the court within 6 months of you becoming aware of the adultery occurring.
This 6-month limit does not apply if the adultery is continuing.
A lesser-used ground for divorce is ‘desertion’. This is where your spouse simply walks out without good reason, and you are still living apart more than 2 years later.
What does desertion mean?
In England and Wales, desertion is defined as one spouse deserting the other without agreement, for a continuous period of at least 2 years.
For example, your husband may say “I’m leaving” and walk out. If you had then lived apart for more than 2 years in the intervening 2.5 years, then you can claim they had deserted you. Your spouse must have left without a good reason, without your agreement and with the intention of ending the relationship.
How can you prove desertion for a divorce?
The difficulty in proving desertion is that you have to provide evidence that your spouse had the mental intent to divorce throughout the 2-year period of desertion.
For example, your spouse may just have left and worked overseas for 2 years. If they had intended never to return from this point, then you could claim desertion. However, they may have only decided not to return in the last few months, meaning you can’t prove the necessary 2-year desertion period.
Desertion is not rarely used as a ground for divorce because you must prove the mental intent was there throughout the 2 years. This is hard to do.
Do I need my spouse’s consent to start the divorce process citing desertion?
No. You can start divorce proceedings citing desertion without the consent of your spouse.
If you don’t know where your ex is, you must demonstrate that you have attempted to contact them. This could be online, or through traditional methods.
Separation for 2 years with consent
If you and your spouse are prepared to agree, then you can divorce after you have been living apart for 2 years.
How do I apply for divorce using 2 years’ separation as a ground?
To use this ground for divorce, you must satisfy these two conditions:
- You have lived apart for a continuous period of at least 2 years
- You must both consent to the divorce.
How do we prove 2 years’ separation if we have been living in the same house?
You and your spouse will be treated as living apart if you don’t live in the same household.
If you do continue to live in the same household, you can still be treated as living apart if you can prove:
- you sleep in separate rooms
- you don’t go out together socially
- you cook, clean, wash and eat separately
- you don’t spend time at home together.
How does the other party give consent?
To get a divorce citing 2 years’ separation, your spouse most consent to the divorce. This is normally done when they complete the acknowledgement of service form, issued by the court after your divorce petition is filed.
Consent can also be provided in writing.
What if my spouse won’t give consent?
If your spouse does not sign the acknowledgement of service form, and they do not otherwise consent to the divorce in writing, you would not be able to proceed citing this ground.
You would have to consider another reason, such as unreasonable behaviour.
Separation for 5 years without consent
If you have lived apart from your spouse for at least 5 years immediately preceding your application, you can apply for a divorce without their consent.
Again, if you have been living in the same household then you will need to demonstrate that you are truly separated (see above).
Does my spouse have to agree to the divorce?
No. If you are applying for a divorce citing 5-year separation your partner doesn’t have to agree to the divorce. No agreement to the petition is required, and as there is no ‘blame’ assigned to either spouse there is nothing to defend in court.
What if I am no longer in contact with my spouse?
If you are petitioning for divorce having been separated for more than 5 years, you must provide an address for the court to send the divorce petition to your ex.
If your spouse cannot be found, then the process can be delayed and cost more. This is because of the additional steps the court will have to take in these circumstances.
Do I have to prove that I have tried to find my spouse?
If you are no longer in contact with your ex, then you must demonstrate to the court that you have tried all reasonable means to find them. You should:
- Contact relatives or their place of work
- Write to their last known address
- Try and contact them online, perhaps through social media.
If you can show the court you have taken these steps and are still unable to find them, there are alternative options you can take. For example, you could apply to ‘dispense with service’ of the divorce petition, meaning the divorce can proceed without serving the papers to your ex because you have exhausted all methods of trying to find them.
Can my spouse contest a divorce based on 5 years’ separation?
Yes. For example, your spouse may claim that you haven’t been separated for the 5 years required under this ground. You may have to prove that your claim that you have been separated for 5 years is true.
In other cases, your spouse can claim that the divorce would case ‘grave financial or other hardship’ and that it would be wrong to end the marriage. An example could be an elderly wife suffering the loss of significant pension benefits through divorce.
The hardship would have to be caused by the end of the marriage, not just by your separation. This means that defences to this reason for divorce are rare.
Does the ground for divorce affect the divorce settlement or child arrangements?
One of the main concerns you may have when getting divorced is that the allegations made against you in the divorce petition may influence any financial or child arrangements.
For example, you may have been accused of unreasonable behaviour or adultery in the divorce petition and be worried that this could affect the division of assets or contact with your children.
In the vast majority of cases, financial settlements and contact arrangements for children are not affected by the contents of the divorce petition. If you are concerned about the unreasonable behaviour cited, or an adultery claim, you can often agree not to defend it on the condition that no use of these allegations is made in further proceedings such as financial or childcare arrangements.
Financial settlements are fair and give priority to the needs of your spouse and any children. The division of your assets will not be determined based on how you treated each other or whether one of you had any marital misdemeanours. The divorce petition does not in itself change a judge’s thinking when making awards for finances or contact.
An advantage of this is approach is that, as settlements are generally not affected by the grounds for divorce, there is less chance that the original divorce application will be contested by the spouse who receives it. This helps the process run more smoothly and ensures it is completed more quickly.
Note that ‘unreasonable behaviour’ may in more extreme cases affect the outcome of the divorce. For example, if, during the marriage your spouse was violent to you, or to your children or deliberately sabotaged your finances then this could be taken into account in any financial settlement or child arrangements.
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