Grounds and the facts to prove them
You can only divorce or get a dissolution on the ground that the marriage or civil partnership has irretrievably broken down (i.e. permanently).
The court will accept any of the following 'facts' (although not strictly correct, these are often referred to as the 'grounds') as proof of the 'irretrievable breakdown':
- Adultery (not available as a fact in civil partnerships)
- Unreasonable behaviour
- 2 years' separation
- 5 years' separation
Generally, you would only use the 'strongest' fact (i.e. where you have most evidence) to show 'irretrievable breakdown'. Relying on more than one fact will complicate your case.
Adultery (not applicable in civil partnerships)
Adultery occurs when your spouse has had voluntary sexual intercourse with a person of the opposite sex and you find it intolerable to continue living with them. You cannot use this ground if:
- your spouse has had a sexual relationship short of intercourse;
- your spouse has had a sexual relationship with a person of the same sex; or
- you're in a civil partnership, irrespective of whether it's a same-sex or opposite-sex partnership.
In each of these cases you'd need to use the fact of unreasonable behaviour (see below) instead.
You must have proof that intercourse actually took place, e.g. a witness who can testify to it or a photograph or a video recording, etc. If you do not have such proof (as is usually the case), you will need your spouse to sign a confession admitting to the adultery.
You can continue living with your spouse for a period (or periods) of up to 6 months after you became aware of the last instance of adultery. You cannot, however, rely on this fact if you've lived with your spouse for a period (or periods) of more than 6 months after that instance
This is where your spouse or civil partner has behaved in such a way that you cannot be reasonably expected to live with them.
Unreasonable behaviour could include: excessive jealousy, financial incompetence, emotional unavailability and lack of affection, and untruthfulness and secretiveness. More serious examples include habitual drunkenness, domestic violence, and 'improper associations' such as sexual relations other than intercourse with a person of the opposite sex or any sexual relations with a person of the same sex.
The court will look at each of your circumstances, your relationship and particular characteristics and decide whether it is reasonable to expect you to continue living together. If there is a specific reason for the unreasonable behaviour, such as mental illness, this will not necessarily prevent your petition from succeeding on this fact.
If the unreasonable behaviour has had an effect on your health, you should get a report from your doctor confirming this.
If you live with your spouse or civil partner after the final incident of unreasonable behaviour for a period (or periods) of more than 6 months, the court will take this into account when deciding whether you can reasonably be expected to continue living together.
Desertion means that your spouse or civil partner decided, without your consent, to leave you and not return. You could be deserted even if your spouse or civil partner still lives in the same house as you. Desertion means that you are no longer living as a married couple or civil partners.
There can be no desertion where you agree to live apart, or where a court grants a decree of judicial separation (marriages) or a separation order (civil partnerships). Likewise, it is not desertion if your spouse or civil partner makes an offer to live together again and you refuse.
The desertion must continue for a period of at least 2 years before filing the petition at court. If you wish to live together again (e.g. to try to reconcile), you can do so for a period (or periods) of up to 6 months in total. This will not count towards the required 2-year desertion period. If the living-together period (or periods) is more than 6 months, then the time that you lived apart before that will also not count towards the 2-year period.
2 years' separation with consent
To use this fact, you must have lived apart from your spouse or civil partner for a continuous period of at least 2 years. In addition, they must give you their consent to the divorce or dissolution.
However, if you and your spouse or civil partner have decided to end the marriage but you both still live in the same property, the court will look at your living arrangements to decide whether you are 'separated' in the eyes of the law. For example, you may still live together, but sleep in separate parts of the house, clean, eat and pay bills separately.
The rules for the calculation of the required 2-year separation period are the same as those for the 2-year desertion period, discussed above.
5 years' separation
To get a divorce or dissolution on this fact, you must show that you have lived apart from your spouse or civil partner for a continuous period of at least 5 years. You do not need their consent to the divorce or dissolution.
If you and your spouse or civil partner are separated but still live in the same property, the court will look at your living arrangements to decide whether you are 'separated' in the eyes of the law.
The rules for the calculation of the required 5-year separation period are the same as those for the 2-year desertion period, discussed above.