Grounds for Divorce

Whilst there is only one ground on which a Petition for Divorce can be presented to the Court by either party to a marriage; being the fact that the marriage has irretrievably broken down, the parties must satisfy the Court of one or more of five facts to ‘prove’ this breakdown. The fact is merely evidence of the breakdown so does not need to have actually caused the breakdown itself. This means that the fact could occur after breakdown but still be used as evidence of it.

Once the Court is satisfied that a fact is proven, then it must grant the parties a Decree Nisi unless they have reason to believe that it has not broken down – for example where the parties began living together again before the divorce was granted.

It should be noted that the grounds for a breakdown of a Civil Partnership effectively mirror those of a Divorce, except in relation to the fact of adultery.

The five facts are:

1.  Adultery

This fact requires two elements: a) adultery b) intolerability.

Adultery can only be claimed where sexual intercourse occurred between two persons of the opposite sex, one or both of whom is or are married. Adultery can be proved or inferred by a confession of the respondent, birth of a child to the wife on proof that the husband was not the father and evidence that the Respondent and a member of the opposite sex are cohabiting.

Intolerability does not have to be as a consequence of the adultery, it could also be because of some other behaviour of the Respondent. Additionally intolerability is subjective – the Petitioner must simply show the Court that they find it intolerable to live with the Respondent. Generally in uncontested Divorce cases the Court does not need any proof of the intolerability of the situation.

For both these elements, where the parties have lived together for a period or periods together exceeding six months after the Petitioner found out about the last act of adultery/intolerability, then the Petitioner cannot rely on this ground.

2.  Unreasonable behaviour

This fact claims that “the Respondent has behaved in such a way that the Petitioner cannot reasonably be expected to live with the Respondent”.

The Court will take an objective view on whether or not the Petitioner cannot reasonably be expected to live with the Respondent. The Court must make a value judgment about the Respondent’s behaviour and its effect on the Petitioner. They will have regard to the history of the marriage as well as to the personalities of the individual spouses.

The behaviour does not need to be weighty or grave, nor does there need to be proof that the Respondent had any intention to inflict misery on the Petitioner. In practice each case depends on its facts, but usually in an undefended Divorce the Court will look for three to six examples of behaviour. It is best practice to provide an example of the first, worst and last acts to show the length of time, the major incidents and when the last example occurred.

Examples can include:  physical violence, verbal abuse (insults, threats, nagging), demanding sexual intercourse too often or not agreeing to it at all, cruelty, failure to provide money or food and failure to provide affection or attention. The mere fact that the Petitioner has become bored with the Respondent, or that they are incompatible will not suffice.

Where the parties live together for more than six months after the last incident of behaviour cited in the Petition, the Court will take the length of the cohabitation into account in determining whether the Petitioner can reasonably be expected to live with the Respondent. The longer they have stayed together the less likely that the Court will grant the Petition. It is always open to the Petitioner to show good reason why they continued to live together.

3.   Desertion

For this fact it must be shown that the Respondent deserted the Petitioner for a continuous period of at least two years immediately preceding the presentation of the Petition.

The elements needed include:

a)  Separation. In most cases the parties will be living apart, however it is also possible to be living under the same roof but be considered ‘separated’ if their common life has ceased. The Court would then examine to what extent they share domestic life – do they cook for each other, eat and sleep together etc.

b) There must be an intention to desert, to bring the marriage permanently to an end.

c)  The Petitioner must not consent or agree to this separation.

d)  The Respondent must not have just cause to leave.

e)  The desertion must be continuous. Several periods of separation cannot usually be added together to form the two year period.

f)   The desertion must immediately precede the presentation of the Petition.

Any period(s) of time when the parties lived together during this separation will not be counted as long as it was for less than six months, however this time period cannot be used to make up the two years desertion itself.

As this fact is so technical, in practice it is rarely relied upon.

 4.  Two Years Separation by Consent

This is where the parties have lived apart for a continuous period of at least two years immediately preceding the Petition and the Respondent agrees to the Divorce being granted.

The test of separation for this fact is similar to the one mentioned above; the parties must be living completely separate lives, even if living under the same roof. It should be noted that physical separation may not be enough. There must also be a mental element; one of the party’s must regard the marriage as at an end, never intending to live with the other spouse again.

Consent is usually indicated by the Respondent in his Acknowledgement of Service form which he returns to the Court on receiving the Divorce Petition. However, the Respondent can withdraw his consent at any time before the Decree Nisi is granted and he need no give a reason for it. Additionally the Respondent can apply to the Court to rescind the Decree Nisi should it transpire that they were misled into giving their consent.

Here again the parties cannot have lived together for a period or periods which together exceed 6 months. Under this amount of time will be ignored, however it will not be included in the calculation of two years separation.

If this fact is the only one relied upon, the Respondent may apply to the Court for consideration of their financial position following the Divorce. This means that should the Respondent make such an application, the Court will not grant a Decree Absolute until they are satisfied that (a) the Petitioner is not required to make financial provision for the Respondent and (b) that any financial provision provided for is fair and reasonable, or is the best that can be made in the circumstances.

5.  Five Years Separation

This fact simply requires the parties to have lived separately for a continuous period of at least five years immediately preceding the Petition. In this situation there is no need to obtain the Respondent’s consent. Here too the Respondent can ask for their financial position to be taken into account before granting a Decree Absolute.

In this fact the Respondent could also put forward a defence stating that the dissolution of the marriage would result in grave financial or other hardship and in all the circumstances it would be wrong to dissolve the marriage. The Court will consider all the circumstances, including the parties’ conduct, their interests and the interests of any children.

In practice it can be difficult to establish that the hardship is grave enough to warrant refusing a divorce.

The above information kindly provided by Shmuel Portnoy of Darlingtons Solicitors. Get in touch with Darlingtons for advice on the full range of divorce or family law issues.