How to start a divorce. Using the right divorce grounds.
The person who starts proceedings is called the Petitioner. If the Petitioner can convince the courts that their marriage has broken down and cannot be repaired, the court will allow the divorce. To prove that the marriage has broken down, the Petitioner must use one of the following five grounds for divorce:
- Adultery
- Unreasonable behaviour
- Desertion
- Two years separation with consent
- Five years separation (no consent required)
Adultery
In legal terms, adultery refers explicitly to a married man or woman having sexual intercourse with someone of the opposite sex. This means that many behaviours often thought of as adultery are not in the eyes of the law.
Legally, adultery covers only sexual intercourse. This means that behaviours such as kissing, masturbation, fellatio, sexting, and virtual sex do not count to get divorced.
Adultery can only be used if actual sexual intercourse has taken place between your spouse and a person of the opposite sex.
Under current law, if you are in a civil partnership, you cannot rely on adultery. Even if your partner committed adultery with a member of the opposite sex.
Its often thought that divorce on the grounds of adultery is the most commonly used. However, due to the difficulty in proving that it took place, only 9% of men and 10% of women use adultery according to the latest research from the Office of National Statistics.
For more information on adultery and how to use it as the grounds for your divorce, read our article here.
Unreasonable behaviour divorce grounds
The most common ground for divorce is unreasonable behaviour used by 35% of men and 49% of women last year.
To use unreasonable behaviour, the Petitioner must show that the conduct of their spouse is such that it is unreasonable for the court to expect the Petitioner to live with them.
The Divorce Petition must include examples of the Respondent’s unreasonable behaviour during the marriage. This can consist of severe or relatively mild allegations of behaviour.
Common examples of unreasonable behaviour include physical and verbal abuse, alcohol or drug misuse and financial irresponsibility.
For more information on unreasonable behaviour and how to use it as the grounds for your divorce, read our article here.
Desertion as a ground for divorce
Of the 107,000 divorces in England and Wales in 2019, less than 400 people used desertion as their ground for divorce.
The Petitioner needs to show that the Respondent has deserted him/her for a continuous period of at least two years. Proving that desertion took place can be tricky, so two years separation is often used as the ground for divorce instead.
Two years separation with consent
If a married couple has lived separately for two years or more and both agree in writing to a divorce, then this can be proof that an irreparable breakdown of marriage has occurred.
Two years separation with consent is the second most common ground for divorce after unreasonable behaviour, used by 33% of men and 25% of women.
Five years separation without consent
If a married couple has lived separately for five years or more, then this can be proof of marital breakdown. Although both people need to agree to use two years of separation to obtain a divorce, five years of separation can be used even if your spouse does not agree to a divorce.
Last year 23% of men and 15% of women used five years separation as their ground for divorce.
For more information on two years and five years separation, see your article here.
Choosing the right divorce grounds
To make the divorce process as straightforward as possible, it is vital to establish the grounds on which to base your divorce petition as early as possible. In many cases, the reasons for the marriage breakdown does not fit neatly into one of the five ground for divorce, and often there is overlap.
If you would like to talk to one of our friendly experts to help you find the best divorce ground for you, email us or call 0204 530 8101.
