201910.02

What are the grounds for Divorce?

There is only one ground for divorce, which is “the marriage has irretrievably broken down”. However, the divorce will only be granted if one of the five facts laid down by law, providing that irretrievable breakdown has been established. The five categories are:

  • Adultery
  • Unreasonable behaviour
  • Desertion
  • Two years’ separation with the consent of the respondent
  • Five years’ separation (no consent required)

Once one of the facts is established, a presumption of irretrievable breakdown is raised. In an undefended case, the court simply accepts the statement made in the petition that the marriage has broken down.

The respondent can challenge the assertion that the marriage has irretrievably broken down by filing an answer to the petition denying the breakdown of the marriage. In such a case, the divorce proceedings become defended and a different procedure is followed.

Adultery

To establish this fact, the petitioner must prove:

  • The respondent committed adultery
  • The petitioner finds it intolerable to live with the respondent
Meaning of adultery

Case law defines adultery as, “voluntary sexual intercourse between a man and a woman who are not married to each other but one or both of whom is or are married”. A statutory definition has now also been introduced, clarifying that adultery can only be committed between people of the opposite sex.

Given the definition of adultery, this fact cannot be relied on by same sex couples (unless the sexual intercourse was with someone of the opposite sex). If a party believes their same sex partner has had sexual intercourse with a third party of the same sex, they can use this as an example of unreasonable behaviour.

Unreasonable behaviour

This is the most common fact relied on. To establish this fact, the petitioner must prove that the respondent has behaved in such a way that they cannot reasonably be expected to live with the respondent.

It is both a subjective and objective test and the court will ask: Would any right-thinking person conclude that this respondent has behaved in such a way that this petitioner cannot reasonably be expected to live with him or her, taking into account the whole of the circumstances and the characters and personalities of the parties?

Desertion

To establish this fact, the petitioner must prove the respondent has deserted him for a continuous period of at least two years immediately before the petition is filed at court.

The petitioner must establish the following:

  • A separation
  • An intention to desert
  • No agreement or consent to the separation
  • No just cause for the respondent to leave
  • The desertion is continuous
  • The desertion immediately precedes the date the petition is filed at court

It is rare for a petitioner to rely on desertion to support the breakdown of the marriage.

Separation

The parties are treated as living apart unless they are living in the same household. Even if the parties are living in the same home, they can be living apart if they are leading “completely separate lives”. A physical separation does not necessarily mean the parties are in separate homes. At least one of them must also regard the marriage at an end and intend not to live with the other spouse again.

Two years’ separation with consent

To establish this fact, the petitioner must prove:

  • The parties have lived apart for a continuous period of at least two years immediately before the petition is filed at court.
  • The respondent consents to a decree of divorce being granted.
Five years’ separation

To establish this fact, the parties must have lived apart for a continuous period of at least five years immediately before the petition is filed at court. The petitioner does not need the respondent’s consent to the divorce.

There are two defences to this fact: the respondent can deny there has been a separation of five years, or the respondent can allege “grave hardship”.

Grave hardship

Where the only fact the petitioner can rely on to support the irretrievable breakdown of the marriage is five years’ separation, a respondent may defend divorce proceedings if he can show the following:

  • A divorce would result in grave financial or other hardship; and
  • In all the circumstances it would be wrong to dissolve the marriage.

In deciding whether this applies, the court must consider all the circumstances of the case, including the parties’ conduct, the interests of the parties and the interests of any children or other persons concerned.

Reform

The Secretary of State for Justice David Gauke introduced the Divorce, Dissolution and Separation Bill into the House of Commons on 13 June 2019.

Once it is enacted (this bill has been affected by the “prorogation” of Parliament), individuals in England and Wales will be able to obtain a divorce merely by filing a statement of irretrievable breakdown of the marriage or civil partnership, without any need to demonstrate that the other spouse’s conduct is intolerable, or to prove separation for two years.

For more information regarding divorce, please contact our family team at our Guildford office on 01483 451900.