Divorce & relationship breakdown
There is only one ground for divorce in the UK and that is on the basis of the “irretrievable break down of the marriage.” The Applicant must be able to prove that the marriage has broken down irretrievably based upon one of 5 “facts”. The Applicant must be able to prove that on the balance of probabilities that marriage has broken down irretrievably and one of the 5 facts has occurred.
- Adultery – this is defined as “voluntary sexual intercourse between a man and a woman, one or both of whom is or are married to someone else.” In the case of civil partnerships, this fact can only be relied upon if the adulterer had sexual intercourse voluntarily with a member of the opposite sex. This can be difficult for the applicant to prove without evidence, which shows that it is more than just a suspicion of the applicant.
- Unreasonable Behaviour -the Applicant must show that their spouse has behaved in such a way that they cannot reasonably be expected to live with them. This is subjective as the courts will not identify what makes a behaviour unreasonable. Through case law the “right thinking person approach” is now commonly used by the courts to determine if the behaviour constitutes being unreasonable: “Would any right thinking person come to the conclusion that ‘this husband’ has behaved in such a way that ‘this wife’ cannot reasonably be expected to live with him, taking into account the whole of the circumstances and the characters and personalities of the parties”
- Desertion –this is commonly misunderstood, and many people believe that it is simply the spouse physically abandoning them. Instead the facts to be proved are that the parties have separated, the spouse had the intention to desert, the applicants lack of consent to the separation and lack of just cause for the desertion. This must have occurred for a period of 2 years. It is possible that the parties could be living in the same household, as long as the applicant is able to prove that they are leading entirely separate lives. The intention of desertion must be communicated to the applicant though. Desertion is very difficult to prove as each of the elements must be shown to have occurred for a continuous 2 year period.
- Two Years Separation and Consent - the Applicant must show that the parties have led separate lives for a continuous period of 2 years and one party believed that the marriage was at an end. If there is any reconciliation within the 2 year period, the time will essentially need to begin again. It is also essential for the spouse to consent to the divorce on these grounds. It is therefore useful if the Applicant is seeking to rely upon this fact, that they obtain their spouses signed consent prior to sending the petition for divorce.
- Five years’ Separation - the Applicant must be able to demonstrate that the parties have lived apart for a continuous 5 year period.