As most people know, the sole ground for divorce is the irretrievable breakdown of a marriage based upon one of five things:
- Unreasonable behaviour
- Two years’ separation plus consent
- Five years’ separation
Unless the parties wish to wait for two or five years, then one party must be blamed by the other for the breakdown. However, there is a legal bar to presenting a divorce petition within the first year of a marriage. These days, most grounds for divorce are uncontested.
The five facts supporting the ground for divorce:
The respondent has committed adultery and the petitioner finds it intolerable to live with the respondent.
Adultery must have been committed and the petitioner finds it intolerable to live with the respondent. For same sex spouses, it is actually defined as sexual contact with a person of the opposite sex. It is not currently defined as adultery to have sexual contact with someone of the same sex.
Adultery is defined as voluntary sexual intercourse between a man and woman who are not married to each other but one of whom is married. The respondent can admit adultery by confirming this on their acknowledgement of service or in a witness statement. If the respondent does not admit adultery it means that the petitioner will have to provide evidence for the court. This could include evidence that the respondent has been living with someone else of the opposite sex. Or evidence could be supplied by neighbours, the petitioner or friends. Other evidence might include kissing in public, spending the night together in a hotel, sending intimate emails or text messages, or a venereal disease. It might also mean that the wife has given birth to a child that is not the petitioner’s.
The usual position would be for the petitioner to formally state that they find it intolerable to live with the respondent.
The respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent.
This can apply to any behaviour that one party finds unreasonable to the extent that they cannot reasonably be expected to live with the respondent. There is no clear definition of ‘unreasonable behaviour’ because each marriage is different. One person may be better able to tolerate certain behaviour than another. The court’s job in this case is to look at all the facts, the personalities and the marriage as a whole.
A famous case from the 1970s set the test in this area (Dunn J in Livingstone-Stallard v Livingstone-Stallard  Fam 47): “Would any right-thinking person come to the conclusion that this husband has behaved in such a way that this wife cannot be reasonably expected to live with him, taking into account the whole of the circumstances and the character and personalities of the parties?” In this case, the petitioner had complained that her husband was overtly critical of her dress, friends, cooking and one evening had thrown her out of the house, locked the door and thrown cold water over her. She suffered bruising and medication for shock. Her petition was ultimately successful!
Although there is no set list of behaviours that can be set out in a petition on these grounds, the following issues have been raised in successful petitions:
- Excessive sex or lack of sex
- Improper association with another person
- Verbal abuse, shouting and/or belittling
- Unreasonable sexual demands
- Excessive socialising or lack of socialising
- Domestic abuse
- Debt or financial recklessness
It doesn’t matter whether the behaviour is intentional, of course. For example, if one party becomes mentally ill, this will be taken into account by the court.
The respondent has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petition.
Pretty obvious this one but actually this is now seldom used as grounds for divorce since it is easier to use two-year separation with consent basis referred to below. To claim desertion, one party must have deserted the other for a continuous period of at least two years (although both parties can still live separately under the same roof). In addition, there must be the intention by one party to permanently desert the other, the petitioner cannot consent to the desertion (for example through a separation agreement), and there must be an absence of good cause so for desertion to be used, the couple’s separation could not be due to the petitioner’s unreasonable behaviour.
The parties to the marriage have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition and the respondent consents to the decree being granted.
Two key aspects must be proved for this to be used as grounds for divorce:
- The petitioner and respondent have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition.
- The respondent consents to the petition being granted.
Consent is usually proved by the respondent signing the acknowledgement of service. Consent can be withdrawn at any time up to the issue of the decree nisi and if the respondent has been misled.
The parties to the marriage have lived apart for a continuous period of at least five years immediately preceding the presentation of the petition.
No consent is necessary as long as the parties have lived apart for five years, although there is a defence if one of the parties will suffer severe financial hardship as a consequence.
If both parties live in different houses few problems will be encountered with this one because the law treats people as living apart unless they are living in the same household. However, in order for people living under the same roof to prove separation they must show that they live completely separate lives – both mentally and physically. It is not sufficient to prove that they sleep in separate bedrooms if they still continue to eat together and do household chores for each other. The parties must also demonstrate a mental separation.
The effect of continued cohabitation
The law allows parties to continue living together for six months following the discovery of adultery in order to try and rescue the marriage. If they continue to live together for over six months they will not be able to use the grounds of adultery for divorce.
- Unreasonable behaviour
The law allows parties to continue living together for six months following a ‘final’ incident of behaviour in order to try and rescue the marriage. If there is no ‘final’ incident, the court will not ‘start the clock’ on using this grounds for divorce. There is no absolute bar to divorce on the fact of unreasonable behaviour but in these circumstances the court will also want to find good reasons for the couple’s continued cohabitation, such as if, for example, a woman with small children had no financial resources and was under threat of physical violence if she moved out.