Grounds For Divorce

Grounds for Divorce

This page was last updated on 1 October 2021

Grounds For Divorce In 2021

The divorce process is a stressful time, made more so by having to fill out paperwork with legal terminology. One of the terms you might have heard used in family law is ‘grounds for divorce.’

This article provides a comprehensive outline for you

Topics that you will find covered on this page

You can listen to an audio recording of this page below.

What are the potential grounds for divorce?

There is just one legal ground for divorcing couples. The petitioner, i.e. the spouse who is starting proceedings, has to illustrate that the marriage has irretrievably broken down on the divorce petition. 

What does irretrievably mean?

This means that your marriage has permanently broken down and there will be no fixing it. 

How do you illustrate that your marriage has broken down irretrievably?

There are five facts you can use to show your marriage has broken down in the petition to apply for decree absolute. These facts are commonly referred to as grounds for divorce. These are:

  • Adultery
  • Unreasonable Behaviour
  • Desertion
  • 2 years separation with consent
  • 5 years separation when the other party did not consent.

How do I choose a ground for divorce on the petition?

The petitioner fills out the divorce petition and says which of the grounds for divorce they want to use in divorce proceedings. 

This video also helps provide some useful background.

Adultery

What is meant by adultery?

This is where your spouse has had sexual intercourse with another person of the opposite sex and therefore you will find it intolerable to live with them any more. 

How often is this ground used?

This is used in approximately 20% of divorces in England and Wales. You should use a divorce lawyer to use this ground.

What if there was no sexual intercourse?

If the relationship was not sexual then it is a good idea to use the ground unreasonable behaviour. 

Should I state the name of the party my spouse was unfaithful with?

While you can do this, it is not generally a good idea. This is because not only is it not normally good for your relationship and it might slow down the process if the person will not sign the papers admitting adultery. 

When can you use adultery as a grounds of divorce?

You must have found out about the adultery within 6 months of you sending the divorce petition off to the court, unless the adultery is still going on. You can use this as a grounds even if you are already separated. 

What if your spouse slept with someone of the same sex?

If your wife had sex with another woman this does not count as adultery in the law.

Can I use adultery in a same sex marriage?

No, unfortunately by law you cannot use adultery on your divorce application if you have a civil partnership. 

unreasonable behaviour

Can you launch a divorce petition based on you having an affair? 

The petitioner cannot petition for divorce off the basis of their own affair. Your spouse could launch the divorce on these grounds, or you can use unreasonable behaviour instead. If you both had affairs, either one of you can file on these grounds.

How do you prove adultery?

You have to get an actual admission from your spouse, or you need to have sufficient evidence that they had sexual intercourse with another person.

How long will it take if my spouse admits the affair?

The process is faster if your former partner simply admits the divorce because then the court does not have to decide anything. If the acknowledgment of service was filled out right, then the judge will have to grant the divorce. 

Can you use adultery if you live with them?

You must not have lived with your partner for over six months after finding out they cheated on you. If you have lived with them longer than this, you have to use another one of the divorce grounds. 

Does it count as adultery if you had separated when it happened?

Any sexual relations counts as adultery even if you are separated when it happened. 

Will adultery mean I will do less well out of the financial settlement?

Many people think that admitting adultery means they will be treated worse in court during the divorce process. However, under family law this is not something considered, as the court is aware relationships between a married couple are complicated. 

"There is just one legal ground for divorcing couples. The petitioner, i.e. the spouse who is starting proceedings, has to illustrate that the marriage has irretrievably broken down on the divorce petition"

Unreasonable behaviour

What do you have to show for unreasonable behaviour?

You have to show that your spouse has behaved so badly that you should not reasonably have to live with them anymore. 

How often is unreasonable behaviour used?

This is the most well used ground for divorce, with 45% of all divorces. 

What needs to be put in a petition for unreasonable behaviour?

The petitioner has to list their allegations against the respondent. 

divorce petition

In what situations are unreasonable behaviour used? 

This grounds for divorce is generally used in two main circumstances; first, where there really has been unreasonable behaviour, and second, where the two spouses have drifted from each other and so want to end their marriage. 

How many allegations are needed?

It depends on how serious the allegations are. If they are very serious, like being violent to you, you might only need to make one or two. If the allegations are mild allegations, like not paying you enough attention or not doing chores around the house, think you might have to make five or six different allegations. 

What kind of allegations can be considered?

There are all sorts of allegations, from the serious, like domestic violence or being a severe alcoholic, and then more day to day things like not washing up. Because we do not have no fault divorce yet in England and Wales, the standard for unreasonable behaviour is actually really low. 

What are examples of unreasonable behaviour?

A variety of examples can be used, for example:

  • Being bad with money
  • Lack of a physical relationship
  • Arguing with each other
  • Verbal abuse
  • Not both taking responsibility for the home. 

What kinds of examples should I use if me and my spouse are amicable?

In an uncontested divorce if your relationship is good, you might want to use mild examples of your former spouse’s unreasonable behaviour. Then you will not have to have an unnecessary argument about grounds for divorce. 

divorce proceedings

Can you use your own behaviour?

No, the allegations have to be your partner’s behaviour. 

What are the timings of unreasonable behaviour?

At least one of the allegations have to have been in the last 6 months. 

Can you use this if your relationship is amicable?

If you are still amicable, you can agree on the allegations together before you issue divorce proceedings. This is because otherwise there could be disagreements later down the line. 

Can I use infidelity as unreasonable behaviour?

Infidelity by the respondent is one of the most commonly used examples of unreasonable behaviour. This is because it is simpler to show than adultery. 

Desertion

What is desertion?

This is where your partner has left you for a minimum of 2 years. In practice this is not used very often. 

What counts as desertion?

This is where your husband or wife has left you without your consent or good reason in order to bring an and to your relationship for more than 2 of the last 2.5 years. 

Why would I not want to use desertion?

Desertion is very rarely used because you have to prove a mental intention to divorce by your partner existed for the whole 2 year period. This is hard to prove on the balance of probabilities to a court of law. 

decree absolute

Two years of separation with consent

What is required for this?

You and your spouse need to have already been separated for at least two years. Also, the respondent has to give their consent to the divorce petition. 

What if you are separated but still live together for financial reasons?

If you still live together because of financial matters or because of your children, but you have lived a separate life to your former husband or wife, you have to prove this to the court. This is very challenging, so it might be a better idea to rely on unreasonable behaviour instead. 

How do you prove consent to separate?

You have to agree in writing. 

Can you live together for any part of your separation?

You can live together for 6 months of the total three year timescale. You can count as separated while you both are living together in one house, however you need to show that you live separate lives at this time. For example, if you sleep and eat together. 

What are the issues with this ground?

You do have to wait 2 years. This can be problematic if you want to sort out your financial settlements. It is unlikely you will use this if you have got a working relationship.

5 years separation without getting consent

What is required for this?

You and your former partner must have been living separately for at least 5 years. You do not require consent for this. 

Can the respondent delay this?

The respondent can delay the final decree if they say that divorce will make them financially worse off. This is rare.

What is required to use this ground?

You have to know your spouse’s address to use this ground, otherwise it will be more complicated, more expensive and take much longer. 

What if i cannot find my spouse?

You have to show the court that you have done everything in your power to try and find them. This includes social media, through mutual friends and maybe looking at national records. 

Does an automatic divorce after 5 years exist?

No, it is a myth of divorce law that once 5 years passes of separation you can just ask the court for a divorce. This is the case no matter how long you have been separated for.

Why would I not use this ground?

5 years is a long time, and it means you cannot remarry or move on properly. 

divorce grounds

What if my spouse will not cooperate?

You have to prove to the court that they were served with a divorce petition. Then, you have to ask the court to serve them with the paperwork, or hire a special private service. 

Do I have to pay for this?

The court normally charges over £100 to serve the papers, and a private service will charge between £100 and £150. Using a private service is faster. 

What will occur once my spouse is served?

Then you can submit the statement of service and your application for decree nisi. This proves your spouse was properly served with the documents. 

What should if I do not have the address of my spouse?

You have three options:

  • You can apply for a court order against a government department to get your spouse’s address if they are in the UK
  • Make an application to dispense with service if you think that your husband or wife lives abroad. You need to show you tried every idea you can think of. 
  • If you know one of your husband or wife’s close family members or work colleague’s addresses, you should apply to the court for the divorce papers to be sent to them instead. 

Are there any other grounds for divorce? 

In England and Wales you must use one of the above grounds to show your marriage should be ended. 

divorce solicitor

No Fault Divorce

According to parliament, the Divorce, Dissolution and Separation Act (2020) is planned to be fully passed by the end of 2021. This would allow couples to divorce without needing any of the grounds. Instead, they could prove a sole or a joint statement and sign it. They would not have to give more evidence than this. 

Will the grounds of divorce I use affect my financial settlement?

The grounds are not generally thought about by the court or a judge when considering the financial settlement. The court considers how long the marriage was, whether you have children and how much each party earns. 

What if I disagree with the grounds of divorce I have been served with?

You will be served with an acknowledgment of service where you can say if you agree with the divorce papers and say if you want to contest the divorce. You should use a solicitor or legal services if you are considering a defended divorce/contested divorce with your husband or wife.

What should I do if my spouse contends the divorce?

It is suggested that you get proper legal advice from a specialised divorce solicitor. 

What if my civil partner or spouse will not sign an acknowledgment of service?

You are able to apply to the court to grant deemed service. You have to prove your husband or wife got the papers.

Do I need to use a solicitor?

It is not necessary to use a divorce solicitor if your divorce is quite simple. However, you should use a solicitor if your divorce is complex.

Would you like a confidential chat with a divorce lawyer?

Slater and Gordon’s experienced divorce lawyers have the empathy and the expertise you need.

Slater and Gordon are regarded as the UK’s leading divorce and family law solicitors.  They will be able to help you.

You can contact Slater & Gordon in one of 2 ways:

  • Option 1 – Call directly on 0333 567 1610 
  • Option 2 – Leave your contact details and Slater and Gordon get in touch with you

You can call directly between Monday and Friday 9am – 5pm on

Tel: 0333 567 1610 

You can arrange a call back from a divorce and family law specialist.

More information related to family law

Clean break order

A clean break can be a good idea in circumstances where both partners can successfully be financially independent of each other following the divorce. As the name implies, this means they are fully separate financially.

cohabitation agreement

A cohabitation agreement for unmarried partners is where couples who live together but are unmarried set up an arrangement to protect their rights.  This can cover all sorts of things, like what share of the property each party is entitled to, what happens if the relationship ends.

Consent order

Consent orders record what a divorcing couple have agreed to do about their finances. Having a formal agreement means that your former partner cannot make claims off you further down the line, long after your marriage has ended. 

pension sharing on divorce

Pensions and divorce are both tricky, complicated subjects. The end of a relationship is not a convenient time for technical discussions of your pension, and divorce proceedings make everything more complicated. Our article covers the key topics.

mesher order

A mesher order is issued by the court, and deals with what is done with the family home when a couple gets divorced. It means you can put off selling the house for either a set amount of time or until a trigger event happens.

Will writing services

Most people in England and Wales do not have a will in place. Wills are very important documents, as they allow you to set out how you want your property and assets to be distributed after you die. It is really important you update your WIll if you are going through a divorce.

Article author

Katy Davies

I am a keen reader and writer and have been helping to write and produce the legal content for the site since the launch.   I studied for a law degree at Manchester University and I use that theoretical experience, as well as my practical experience as a solicitor, to help produce legal content which I hope you find helpful.

Outside of work, I love the snow and am a keen snowboarder.  Most winters you will see me trying to get away for long weekends to the slopes in Switzerland or France.

Email – katy@helpandadvice.co.uk

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Frequently Asked Questions

When can you apply to get divorced?

To get divorced in England and Wales, your marriage has to have been at least a year long and it has to be recognised by law in the United Kingdom.

What are the potential grounds for divorce?

There is just one legal ground for divorcing couples. The petitioner, i.e. the spouse who is starting proceedings, has to illustrate that the marriage has irretrievably broken down on the divorce petition.

What is meant by adultery?

This is where your spouse has had sexual intercourse with another person of the opposite sex and therefore you will find it intolerable to live with them any more. 

What do you have to show for unreasonable behaviour?

You have to show that your spouse has behaved so badly that you should not reasonably have to live with them anymore.

 

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