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To do this, you will be required to establish one of the following ‘facts’ in support of your divorce. There are five acceptable reasons for divorce :

Adultery

Unreasonable behaviour

Desertion

Two years’ separation without consent

Five years’ separation (with or without consent)

According to the laws of England and Wales, there are specific conditions that apply to each of the above legal reasons for divorce. It is always advisable to seek the advice of a qualified divorce solicitor before taking any action.

Let’s look at the five reasons for divorce in detail:

Adultery

  • Adultery - need to know

    To cite adultery, you need to prove that your spouse has had sexual intercourse with a member of the opposite sex.

    This fact is very specific and can be challenging to prove. Taking this route can sometimes be tempting if your spouse has indeed committed adultery. However, there are a number of important factors and misconceptions to be aware of.

    To submit a petition on the grounds of adultery, one of the parties must admit his/her adultery in the form. 

    Failure to do this will see the divorce petition fail. Unless you have an indication of cooperation to admit adultery at the outset, this petition should be avoided.

  • Are adultery and infidelity the same thing?

    In a word: no. Many people see the two terms as synonymous, but adultery has a very specific meaning under English law. It only refers to full sexual intercourse between a man and woman when at least one of them is married to someone else.

    No other kind of sexual activity constitutes adultery in this context. Behaviours such as kissing, webcam, virtual, and “emotional adultery” do not count for the purposes of getting divorced.

  • Is it classed as adultery when the affair is with someone of the same sex?

    No. The law defines adultery as something that can only take place between a man and a woman. Any sexual relations with a member of the same sex do not amount to adultery.

  • Adultery in a civil partnership

    Under the current law, you cannot use adultery as a reason to dissolve a civil partnership, even if your partner committed adultery with a member of the opposite sex.

  • Is it classed as adultery if you have already separated?

    Yes. Any sexual intercourse with a member of the opposite sex, irrespective of whether it takes place post-separation, is technically adultery.

    If you engage in a sexual relationship with someone else while you are still legally married, it is technically classed as adultery, even if you have separated and are no longer living together and are not in a physical or emotional relationship with your spouse.

  • Does adultery count against me during the divorce?

    No. While many believe that the unfaithful party will be treated more harshly in court, this is simply not the case. 

    Marital breakdown is rarely all down to one person’s actions. Adultery can be the result of problems already present in a marriage rather than the cause. 

    Judges understand this, so they do not treat people more or less harshly for that reason. The adultery will make no difference in the court’s eyes when determining how the matrimonial finances should be divided.

  • Time restrictions for using the fact of adultery

    If you live with your spouse as a couple for more than six months (or periods which together amount to more than six months) after you find out about the adultery, you would not be able to rely on it to seek a divorce.

    You cannot use your adultery as a reason to get divorced. It must be the adultery of your spouse. 

    The person, your spouse, has been unfaithful with, does not need to be married for it to be adultery.

  • Do I have to name the person my spouse has committed adultery with?

    There is a section in the divorce petition where you can name the person your spouse has committed adultery with, but there is no obligation to name them (and it is discouraged by the court). 

    If you do fill in the person’s name, they will become a co-respondent alongside your spouse. Doing so may drag out proceedings and add unnecessary costs.

  • Do I have to go to court if I list adultery as the reason for my divorce?

    No, not necessarily. If your spouse admits to the adultery and does not defend the petition, a judge will almost certainly allow it to proceed without the need for court attendance. 

    However, accusations of infidelity often cause strong emotional responses, and there is the risk that your spouse will want to defend their reputation in court.

  • I can’t prove adultery; what other options do I have?

    Sexual intercourse is very hard to prove if the other spouse will not admit to it. How can it be proved if you or someone else were not there to witness it?

    In these circumstances, the most common grounds for divorce is unreasonable behaviour.

Unreasonable behaviour

  • Unreasonable behaviour - need to know

    This ground means that your partner has behaved in such a way that you can no longer be reasonably expected to continue living with them. 

    It can cover a whole range of situations from relatively minor behaviour to verbal abuse, controlling behaviour, domestic abuse and illegal drug use.

    This is the most common reason cited in divorce petitions as it covers a broader spectrum of possibilities. Any infidelity that does not constitute adultery (as mentioned above) may be relied upon to demonstrate unreasonable behaviour.

  • What are common reasons for unreasonable behaviour?

    Abusive behaviour, physical, verbal or mental 

    • Debt / financial recklessness
    • Inappropriate relationship or suspicious of affairs 
    • Unreasonable sexual demands
    • Addiction (alcohol, drugs or gambling)
    • Family disputes
    • Spending too much time at work/socialising/exercising 
    • Refusal to discuss relationship issues 
    • Excessive gaming/social media use 
    • Lack of socialising together
    • Lack of support with childcare, household duties, emotional or career support

    You can read more about how to word unreasonable behaviour allegations in a divorce petition.

  • Unreasonable Behaviour examples to avoid

    There are some examples of unreasonable behaviour which are best avoided if you want a straightforward uncontested divorce. 

    • Issues surrounding the children can often prove inflammatory. Try to use other reasons instead.
    • Excessive drinking can often provoke a defensive reaction that could slow down the divorce process, increasing the cost. 
    • Financial mismanagement also can cause arguments. 

    Try to stick to milder, less emotive reasons such as your partner being argumentative, spending too much time working, a lack of intimacy, or socialising together. 

    The more times examples of unreasonable behaviour are contested, the more time and money it will cost you both. 

    It is possible to proceed with a divorce petition on the grounds of unreasonable behaviour without your spouse’s cooperation. 

    The court will send the petition to them, and if they fail to sign and return the Acknowledgement of Service form to the court to enable it to progress to the next stage, there are steps that can be taken to get around the non-cooperation stance.

  • The use of ‘personal service’

    If you find yourself in this position, the next stage is to obtain duplicate copies of the divorce papers from the court and arrange personal service upon your spouse.

    Once you can provide evidence that they have been personally handed the paperwork to the court, the court will allow you to progress to the next stage and ultimately dissolve your marriage.

    Find out more about your options if your spouse ignores your divorce petition.

Two year’s separation

  • Two years seperation - need to know

    If you can wait until you’ve been separated for two years, then there is no need to use any allegations.

    After two years, you can file for a divorce with your ex-partner’s agreement without needing to give any reasons why.

    Divorce after two years of separation is effectively the only no-fault ground for a divorce in England and Wales as there is no blame laid on either party.

    If you have been living apart for more than two years, you are eligible to bring your marriage to an end, but your spouse must give their consent for the divorce to proceed.

    You can use two year’s separation as the fact if both of you agree that the marriage has broken down without any chance of repair.

    It is usually best practice to obtain the other party’s written consent to agree at the outset that you have been separated for two years before a petition is issued.

    Having it confirmed in writing how long you have been separated will be used as evidence in court. 

    The respondent (person receiving the divorce petition) must sign and return the Acknowledgment of Service form to the court confirming you have been separated for two years and above to enable this to progress.

    You will need to provide the court with the addresses you have lived at and the dates you lived there since separating and leaving the family home.

  • What happens if we are living separate lives but still reside in the same house?

    In most cases, one party will move out of the family home, but this is not always possible. In this instance, you will need to prove that you have been living separately even though you are still residing in the same house. 

    Living apart under the same household means that you don’t share, for example, finances, meals, social engagements and a bed.

    You will need to give a detailed statement of your living arrangements for the judge to be satisfied that you are separated. You have to prove that you are not: 

    • Sharing meals
    • Sharing a bedroom
    • Socialising together
    • Sharing a bank account
    • Sharing children activities
    • Sharing the shopping
    • Eating meals together

    You will need to show the Judge that you do not intend to live with your spouse again and that you view the marriage to have ended for the 2-year period to commence.

  • What happens if my spouse will not agree to the 2-year separation as a reason for divorce?

    If your former spouse does not agree to this petition, it will not proceed. However, getting a divorce without consent is still possible.

    We would not recommend using the 2-year separation fact as a reason for divorce if your spouse will not agree to it in advance. The reason for this is primarily due to costs. 

    There is a court issue fee of £593. If you lodge your petition and the respondent (you ex-spouse) refuses to co-operate, not only is the court fee wasted (as well as the costs of preparing the petition), but you will be unable to progress any further. 

    It then becomes necessary to withdraw this petition with the inherent costs of that. You will be left having to start another petition based on a different ground.

Five year’s separation

  • Five year’s separation - need to know

    If you have been apart for more than five years, your spouse’s permission is not required. These petitions are very easy. No consent is required from the Respondent. However, in practice, they are very rare because usually, couples want to dissolve marriages much earlier. 

    Although the Respondent does not need to give his or her consent to the petition, you need to show that they have received the paperwork. 

    However, if you divorce on this basis, you must be aware that if your spouse manages to prove grave hardship as a consequence of the divorce, the court can make an order that you remain married. It is essential to obtain legal advice if you are considering a divorce relying on this ‘fact’.

    The five-year separation rule (and desertion for two years or more) are two grounds for divorce, which are rarely used.

Desertion

  • Desertion - need to know

    To use desertion to demonstrate the end of a marriage, the offending spouse must have done the following:

    • Left without a just cause to do so
    • Left without your agreement or consent
    • Left with the intention of deserting their spouse
    • Left for a continuous period of at least two years immediately before the presentation of the petition

    The courts will consider whether your spouse might have had a good reason for abandonment, for example:

    • you agreed to a trial separation and are living apart, even if you do not know where your spouse is living;
    • your spouse has offered to return, and you refused that offer; or
    • your spouse moved abroad for work but did not intend for the marriage to end.

    Desertion is rarely used as grounds for divorce because you must prove that the mental intent to divorce was there throughout the two years. This is hard to do.

     Most people tend to use either two-year separation, five years of separation, or unreasonable behaviour as the fact to rely on.

    An example to illustrate this point: If your spouse was to work overseas for two years without consulting you, this might be classed as desertion from the moment of leaving. 

    However, if your spouse decided after a year of being abroad that he/she was not going to return to the marriage, the desertion would be classed as for one year, not two. A better fact for divorce in this situation would be to use unreasonable behaviour of the other party who took a job without consulting you. 

    Another difficulty with using desertion as a reason for divorce is that you may not know where your ex is living. The courts will want to see that you have attempted to contact them, either using their home or work address to serve the divorce papers.

What do I do if I don’t have an address for my spouse?

When these petitions are used, there is an option of applying for an order to allow you to affect what is called substituted service.

Substituted service means that in the absence of an address for the respondent, the papers are sent somewhere else, for example, to a family member, a friend, or, in rare circumstances, to a place of work. 

This means that the papers have been properly served (once sent to the new address), and your petition can progress to the next stage. The application for substituted service is effective, but it does add extra costs to the process.  

A word about no-fault divorce

The new no-fault divorce law is due to be implemented in the autumn of 2021(read the latest update here).  

If your separation is amicable, is it worth waiting for the new law to come into effect? 

Being able to avoid the need to attribute blame for the breakdown of your marriage could reduce any animosity and make it more likely that arrangements for any dependent children and finances will be sorted out amicably. However, this needs to be balanced with the need to wait for the law to come into effect.

What you decide depends on your situation, but it might be worth reading more details about no-fault divorce to see if this option might be appropriate for you.

Next steps

At Stowe Family Law, our family lawyers will be able to help you formulate the best facts to ensure that your divorce goes through as quickly and cost-efficiently as possible.

If you would like any advice on choosing the grounds for divorce or other family law issues, please contact our Client Care Team to speak to one of our specialist divorce lawyers.

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