What are the grounds for a divorce?
There is actually only one legal ground for a divorce - the irretrievable breakdown of a marriage that has lasted at least one year.
The person who starts proceedings (the petitioner) must prove this by establishing one of the following:
- Unreasonable behaviour;
- Two years separation with consent;
- Five years separation without consent.
You must prove your spouse had sex with another person and that you find it intolerable to carry on living with them.
Adultery can be used as the basis for a divorce whether you are living together or apart but in both cases, no more than six months must elapse from becoming aware of the adultery and the petition being sent to the court, unless the adultery is continuing.
You cannot petition for divorce on the grounds of your own adultery. Your spouse could divorce you for adultery or you will need to use another ground, usually unreasonable behaviour.
This is now the most common reason for divorce in England and Wales. You must show your spouse has behaved in a way that means you can't reasonably be expected to live with them.
Examples include physical violence, verbal and emotional abuse, excessive drinking or drug taking and financial irresponsibility to name but a few. In many divorces the alleged unreasonable behaviour will be relatively minor for example lack of communication, affection or prioritising work over family life.
This is where your spouse has deserted you, without your consent, for at least two years. This is very rarely used as grounds for divorce as it relies on establishing there was mental intent to divorce throughout the two years which is usually very difficult to prove.
Two year separation
You, or your spouse, can issue divorce proceedings after two years separation as long as you both agree. You can be separated for the purposes of divorce proceedings even if you have been living in the same house.
Five years separation
You, or your spouse, can issue divorce proceedings - without the other party's consent - if you have been living apart for at least five years. Again the period of living apart can include living separately albeit in the same property.
There are technical rules about how the two or five year period of separation is calculated if you have had periods of living apart and of reconciliation.