Grounds for divorce
The only ground (reason) for divorce is that your marriage has irretrievably broken down. Irretrievably means the marriage has broken down permanently and cannot be fixed.
To prove that your marriage has broken down irretrievably, you must state one of five facts in your divorce petition:
- Adultery – your husband has committed adultery with another woman or your wife has committed adultery with a man
Adultery is sexual intercourse between a married person and a person of the opposite sex who is not their spouse.
If your husband or wife admits to adultery and agrees to the divorce proceedings, the divorce is likely to be accepted by the court. If your spouse does not admit to committing adultery you will need to provide the court with evidence of the adultery.
In addition to the adultery, you must also prove that you find it intolerable to live with your spouse, either because of the adultery or because of some other behaviour. Intolerable means that you cannot bear to be in the marriage any longer.
If you continue to live with your husband or wife for 6 months after you find out about their adultery, then you cannot use that incident of adultery as the reason to divorce.
You have the option to name the person who committed adultery with your husband or wife in your divorce petition (the “co-respondent”). However, if you do so you will have to send the divorce papers to that person as well as to your spouse. This will cause additional expense and delay if they do not co-operate.
- Unreasonable behaviour – your husband or wife has behaved in such a way that you cannot reasonably be expected to live with them
Unreasonable behaviour can include a wide range of behaviour from domestic violence to withholding love and affection. Generally, you will need to set out 4 or 5 examples of your spouse’s behaviour. It may be helpful to include the first, the worst and the most recent incident of the unreasonable behaviour during the marriage.
If you continue to live as a couple for 6 months after the last incident of unreasonable behaviour, it may be harder to prove to the court that you cannot reasonably be expected to live with your spouse.
- Desertion – your husband or wife has deserted you for at least two years
You need to show that your spouse left you in order to end your relationship, without your agreement and without a good reason, for at least two years. This is difficult to prove so it is very unusual to use this fact.
- Two years separation with consent – you and your spouse have been separated for a continuous period of two years and you both agree to the divorce
You need not necessarily have lived in separate homes, but you need to have had separate lives, for example, eating and doing domestic chores separately and sleeping in different rooms. Your spouse must agree to the divorce on the basis that you have been separated for a continuous period of two years. It is a good idea to check whether your spouse will agree before sending your divorce petition to the court.
- Five years separation – you and your spouse have been separated for a continuous period of five years
If you have been separated for 5 years you are entitled to apply for divorce, even if your spouse does not consent. Your spouse can only oppose the divorce if they can argue that ending the marriage would result in serious financial or other hardship.