Grounds for Divorce

If you are thinking about divorce before you go any further with the process that will dissolve your marriage you must be sure that you have legal grounds to ask for a divorce. In law only certain circumstances will be granted a divorce by the courts.

The law states that you have to prove that your marriage has irrevocably broken down by showing that at least one of five facts is true. If you can satisfy the court that one of these facts applies to your marriage, your divorce will be granted. The five facts are:

If Both Parties in the marriage have Lived Apart for More than 2 Years

If the divorce isn’t contested, a divorce will usually be granted in these circumstances. It is possible for two people to continue to live in the same place, but to carry on totally separate lives. The court will want to see proof that you and your spouse are living separately that can include sleeping, cooking and washing independently.

If Both Parties in the Marriage have Lived Apart for More than 5 Years

If this amount of time has elapsed the divorce will usually be granted even if one party contests the divorce. One party in the divorce may claim they would suffer financial hardship if the divorce were to be granted. It is a good idea to discuss the details with a solicitor if you are going to use this fact as the basis for your divorce petition.

If One of the Parties in the Marriage Deserts the Other for More than 2 Years

Desertion is defined as leaving your partner without good reason. Also, the period of desertion must be continuous. Short periods of desertion cannot be added together.

If One Partner Behaves Unreasonably Towards the Other

This can be serious misconduct due to excessive drinking, but can equally mean things like working long hours and ignoring family responsibilities. The court will have to make an objective decision about whether the behaviour is unreasonable and therefore grounds for a divorce.

If One Partner Commits Adultery with a Person of the Opposite Sex

Sex with a person of the same sex is not considered adultery. If you continue to live with your partner for over 6 months after discovering they have committed adultery it is unlikely that the court would grant your divorce based on this fact as too much time has gone by. You do not have to name the other party in the adultery. But if you don’t know their name, you must state this in the divorce petition you send to the court.

Note that civil partnerships between same sex partners also have to prove that their partnerships has broken down, but do not have to prove adultery. Civil partnerships tend to use unreasonable behaviour as the qualifying factor in their divorce proceedings.

Grounds for Divorce in Scotland

All of the five facts regarding grounds for divorce apply in Scotland except desertion that has now been abolished as a ground for divorce. Also, you only need to have lived apart for 1 year in Scotland to be granted a divorce and not 2 years as in England and Wales. The five-year separation fact is also reduced to 2 years if you live in Scotland.

Grounds for Divorce in Northern Ireland

The five facts apply to divorces in Northern Ireland. However, the do-it-yourself divorces that can be completed by simply filling in forms are not possible in Northern Ireland. All divorce cases are heard before a judge.