To get divorced, you need to show that you have suffered an irretrievable marriage breakdown. You do this on the basis of one of five 'facts' - the official grounds for divorce
You must also have been married for at least a year. If you have been married for less than a year, you can separate instead or in some cases apply for an annulment.
Similar rules apply for ending a registered civil partnership. If you are simply cohabiting, there is no legal barrier to separation. It can happen as and when either partner wishes.
Grounds for divorce
Whatever your own reasons for divorce, you can only petition for a divorce on the basis of one of five facts:
- Adultery: Your spouse has committed adultery and you find it intolerable to continue living with him or her. You can name the 'co-respondent' (the third party involved in the adultery) but it is not necessary - and is likely to increase emotional tension and legal costs.
- Unreasonable behaviour: Your spouse's unreasonable behaviour makes it intolerable for you to continue living together. Unreasonable behaviour can include domestic abuse, infidelity (other than full adultery) or persistent unpleasantness. This is the most common basis for divorce.
- Desertion: Your spouse deserted you against your will, and you have been living apart for at least two years.
- Two years' separation: You have been separated for at least two years, and you both agree to the divorce. In principle, you can be separated while still living under the same roof - provided you live independent lives (eg: you do not live together or share household chores). You can also have lived together for up to six months during the period of separation, though any time living together will not count towards the two years.
- Five years' separation: You have been separated for at least five years.
Irretrievable marriage breakdown
Normally, the court will accept the grounds for divorce given in the divorce petition as proof of an irretrievable marriage breakdown without going into a great deal of detail.
If you are going to use an incident such as adultery or domestic violence as the basis for a divorce, you must not have continued to live together for more than six months after it occurred. Continuing to live together is likely to show that it is not, in fact, intolerable and so there has not been an irretrievable marriage breakdown.
The situation is more difficult if one spouse decides to defend the divorce, on the basis that there has not been an irretrievable marriage breakdown or that the reasons for the breakdown are not those given in the petition.
Your reasons for divorce
Contrary to popular belief, your reasons for divorce and the grounds for divorce used in the divorce petition usually makes little difference to any financial settlement or the arrangements for your children. There are exceptions - for example in the case of violent behaviour.
Where possible, you should agree between yourselves who will petition for the divorce and what the grounds for divorce will be. You should also try to agree the wording of any details given to support a claim of unreasonable behaviour.
Arguing about this in court in a defended divorce serves little purpose and can be very expensive.
Reviewed by Dominic Wisdom of Brethertons Solicitors