Grounds for divorce
If you want to get divorced, legally you need to come up with a reason – this is called your ‘grounds’ for divorce. It’s important to think carefully about which reason applies to you and your partner before you start proceedings or talk to a family law solicitor who can give you advice if you’re not sure.
How do you show the marriage has broken down?
There are currently five grounds for divorce that you can use when you apply in the UK*
- Adultery
- Unreasonable behaviour
- Desertion
- 2 years separation with consent
- 5 years separation.
*except for same sex marriages/civil partnerships.
Same sex marriage/civil partnership
Although if you are in a civil partnership or married to someone of the same sex, the basic rules are the same, there’s one big difference; you can’t use adultery as your grounds for divorce/dissolution. Adultery, under UK law, means sexual intercourse between people of the opposite sex, so if your same sex partner were to commit adultery with a partner of the opposite sex, it would be acceptable as legal grounds.
The same rule applies in a heterosexual marriage if one partner cheats with a member of the same sex.
In these circumstances you would need advice on which option suits your circumstances better.
Can I use my own adultery to get a divorce?
No. If you have committed the adultery and your spouse hasn’t, they would need to divorce you if they choose to, using your own adultery as a reason.
If you divorce a partner on the grounds of their adultery, you need to state that your spouse has committed adultery, and that you find it intolerable to carry on living with them. Once the adultery is discovered, you must not live together for more than six months before you file for divorce.
You don’t have to name the person they’ve committed adultery with.
If I’m the one who has behaved badly, can I use it as grounds for divorce?
No, much like adultery, if you divorce your partner using behaviour as your reason, it has to be their behaviour that you quote. The person starting the divorce needs to show that their spouse has behaved in such a way that it is unreasonable for the person starting the divorce to continue to live with them.
What does desertion mean?
This is when one person in the marriage literally walks away and ‘deserts’ the other for a continuous period of at least two years – without agreement or for a good reason.
This isn’t used often and can be hard to prove because you need to show that they intended to divorce you for the two years they have been absent
I want a divorce after two years separation – what does ‘consent’ mean, legally?
This means that you and your partner or spouse have been living apart for at least two years and one day (remember the one day as it’s very important) before you apply for a divorce. They will need to acknowledge they’ve received the divorce papers and complete forms confirming that they agree to the divorce and won’t be contesting it.
Can I use five years separation as grounds for divorce when I don’t know where my partner is?
Yes, you can. All divorce proceedings need to be served on the other person involved, but if you don’t know where they are, you will need to prove that you’ve attempted to find them. The court can make an order that the other party be deemed served or to dispense with service all together if you’ve not been able to track them down.
It’s possible to do this on any of the grounds, but for obvious reasons, it’s more commonly used in divorces relying on five years separation.
Can I just separate do we really need to divorce?
Yes, you can just physically separate if you wish, but this won’t end your marriage. If you want to legally end the marriage, you will need to file separate divorce proceedings later.
What’s the difference between Legal separation and divorce?
A divorce will end the marriage.
Judicial separation (also known as legal separation) ends the duty to cohabit with each other.
The procedure is the same.
If you need help or advice on grounds for divorce and other family matters, contact Vanessa Gillbanks…