Assuming that you have been married for over a year – in England and Wales, you may not apply for divorce unless you have been married for more than one year – if you wish to submit a divorce petition to a county court, then you then need to prove the occurrence of one of the following five “irretrievable breakdowns”:
(2) Unreasonable behaviour;
(3) Desertion – for a period of no less than two (2) years;
(4) You have lived apart for at least two (2) years (uncontested divorce);
(5) You have lived apart for at least five (5) years (contested divorce).
The above represent the legally recognized grounds for divorce. Of these, adultery and unreasonable behaviour are the only two ‘instant’ grounds for divorce in England and Wales.
If you are considering citing ‘adultery’ as the grounds for divorce then the following are four factors of which you should be aware:
(1) Only the non-defaulting party, i.e. the person not having the affair, may petition on these grounds;
(2) Sexual relations have actually taken place and must be proven to have done so;
(3) Assuming it can be proven that an extra-martial affair has taken place, divorce on these grounds must be petition for within six months of the affair taking place;
(4) The extra-martial sexual relationship must have been with a member of the opposite sex.
If you are unable to fulfill these criteria, you may want to consider one of the alternative grounds for filing for divorce.
As a note, though it may seem appealing to name the third party in your court petition, if you do so they’ll become a party to the divorce, which may likely delay the process.
‘Unreasonable behaviour’ may seem to suggest itself as a guaranteed ground for obtaining an instant divorce, but the courts have imposed a strict two-part test if you wish to invoke this reason:
(1) The marriage must have broken down irretrievably; and
(2) The non-petitioning party must have behaved so unreasonably that the petitioning party can no longer tolerate living with them.
Recently, a more liberal view of ‘unreasonable behaviour’ has been taken by the courts and they recognise that if you are petitioning for divorce on these grounds, chances are that the marriage has irreconcilably broken down.
A more uncommon ground for divorce, desertion requires a party to physically ‘walk out’ on the marriage with no intention to ever return. This ground is rarely used today as, not only are intentions extremely difficult to prove; but, as desertion can hardly be ‘contested’, it is made redundant by fact of a petition for an uncontested divorce based on two years separation (consented).
Two Year Separation (consented)
Arguable the only amicable divorce option available, is commonly the ground for petition for divorces involving children or sizeable assets. It should be taken into account however that, although the divorce may be friendly initially, there are two factors you need to consider:
(1) if, having lived apart for any period of less than two years, the divorce suddenly becomes contested, then it is likely you will need to live apart for five years; and
(2) any assets you acquire during the two years you live apart will be included in the division of your assets on divorce.
Five Year Separation (contested)
Should your spouse have contested your divorce but you have subsequently lived apart for five years, you can petition the court for divorce regardless of their feelings. Although this may seem to be an absolute ground for divorce, you should be wary of the fact that your spouse may still have grounds to defend against your petition. Thus, should things have become so bad that you feel this is the only remaining option available to you, it is strongly recommended you seek the advice of a divorce solicitor.
At Brendan Fleming Solicitors, we pride ourselves in our expertise in the area of family law, one facet of which is the handling of divorce and separation. Based in Birmingham, our practice extends over the entire Midlands area: Wolverhampton, Coventry; even so far afield as Derby and Nottingham. Our divorce team is led by Annette Woodall, a member of Resolution (formerly the Solicitor’s Family Law Association), who has a wide experience in all matters relating to family breakdown, particularly in respect of financial matters. This includes dealing with high net financial claims, often involving substantial assets and pension issues. She has a firm and practical approach to achieving high levels of settlement and client satisfaction.