When it comes to getting a divorce, the one thing that needs to be proven in court is that the marriage in question has “irretrievably broken down”. This is done by detailing to either the county divorce court or, more rarely, the High Court, the reasons for the end of the marriage, known legally as the “facts for divorce”. There are also two other criteria which a couple need to fulfill before a court will consider divorce:
- The marriage needs to have lasted at least a year (or two in Northern Ireland)
- The marriage needs to be one that is legally recognised in the UK
If the respondent does not agree with the “facts” put before the court, they are usually entitled to contest the divorce, which will lead to both parties having to attend one or more court hearings to discuss the reasons given and thrash out their differences.
The facts for divorce
If a couple have agreed that they want a divorce, they can save themselves a lot of time and money by agreeing beforehand the “facts” that they are going to put before the court. The party initiating the divorce (known legally as the “petitioner”, as opposed to the “respondent”, who is the person being divorced) must first decide what are the “facts” which apply in this case, and which are to form the primary grounds for divorce. There are five basic categories of “facts” accepted in divorce cases – adultery, unreasonable behaviour, desertion, living apart for over two years by mutual agreement and Living apart for over five years without agreement.
Adultery forms a compelling grounds for divorce if all of the following can be proven – that the husband or wife has had sexual relations with someone of the opposite sex, that consequently the couple no longer wish to live together, that this decision was made either within six months of the adultery occurring or within six months of the other partner finding out about it.
To prove adultery in court, details such as the date and location of the sexual act need to be given, with supporting statements from both partners and an admission from the adulterous party. If such an admission is not forthcoming, then the petitioner will need to take further advice from their divorce lawyers.
Remember, adultery only applies in the case of consensual sex. Rape is never adultery.
This is a reason given for divorce if a husband or wife’s behaviour is consistently so bad that living together has become impossible. Forms of unreasonable behaviour include physical or verbal abuse, persistent coldness and lack of attention, the strong suspicion that your spouse is having an affair, or being forbidden to leave the family home.
Proof of unreasonable behaviour is required for the court, and if a husband or wife is unwilling to provide statements, then evidence must be sought from people such as family friends, or a couple’s GP.
If the petitioner can prove that their spouse has left them without permission, without good reason, with the aim of ending the relationship or for a period of two years or more within the past two and-a-half years then this is strong grounds for divorce. In the latter case, a couple can have lived together for up to six months during this period and still claim desertion.
Living apart for over two years by mutual agreement
If a husband or wife have lived apart for over two years and both agree to divorce, then this is good grounds for divorce. As with desertion, if the couple have lived together for up six months in total during the past two and-a-half years. Both parties must agree to these “facts” in writing, so the petitioner needs to agree on this route with their spouse beforehand.
Living apart for over five years without agreement
A husband and wife who have lived separately for over five years make strong grounds for divorce – even if the other party does not agree. The only grounds the If this has happened, you can apply for a divorce without the respondent’s agreement. In this situation, the only grounds that they can object on is if the divorce would cause “extreme difficulties”. This is usually taken to mean financial difficulties.