When filing for a divorce in the UK the petitioner has to cite the grounds so that you can start divorce proceedings. There are thousands of different potential reasons accepted for a divorce but they have to fall into one of five and soon six categories.
The UK government has committed to bringing a sixth reason, a ‘no fault’ divorce, into law on the 6th April 2022.
What to Consider before Choosing Grounds for Divorce:
How contentious is it?
The first consideration is how contentious you think your spouse will view your petitioned reason and so whether they will accept the reasons for the breakup.
If you mutually agree on the allegations then you can go ahead with an Uncontested Divorce which will save a lot of time, pain and money for both parties. Divorce costs can even be split between the couple in these cases.
For a Contested Divorce a solicitor will be required which increases the cost plus the increased length of time.
Will your partner argue the point or be insulted? Consider your reason very carefully as a less contentious reason cited may allow the divorce to go ahead more cheaply and easily.
How much personal cost would you think proving a point is worth?
How serious is it?
A second point to consider is how frivolous or unimportant the reason is. There are no trivial reasons to get divorced but there are grey areas where you have to consider how this will look to a judge.
If the divorce becomes contested then the reason given by the petitioner will be given far greater scrutiny by the courts. Bear in mind that you will need to provide evidence of the responders guilt.
Whatever the reason it is very unlikely to affect the financial settlement
In the UK it is very unusual for a court to financially favour one party over another due to the petitioned reason.
If there is no prenuptial financial agreement in place then the criteria for how financial assets are to be divided are set out in The Matrimonial Causes Act 1973.
To start the division will be considered equal and then the court will consider aspects such as financial requirements and obligations as well as standard of living.
There would have to be exceptional circumstances for the judge to consider adultery or unreasonable behaviour.
Therefore there would be little incentive to push for a contentious divorce reason for financial gain even if you were wronged.
As mentioned earlier, the ‘no fault’ grounds for divorce will be law on 6th April April 2022. It was hoped that it would come into force in 2021 but it is thought that the delay is due to the necessary changes needing to be made to HMCTS’s online divorce systems.
Until then the reasons for the divorce will need to be assigned or ‘blamed’ on someone when issuing divorce proceedings. This can frequently be a contentious issue as both parties may be at least partially to blame or even that couples simply want to break up rather than pointing fingers.
Breakups can often be amicable until the couple is forced into the situation of having to decide why and then submit documentation to a court stating said reason.
You will need to either prove that your partner is an adulterer or have them admit to the affair.
There must have been actual sexual intercourse and it must be with a member of the opposite sex. If no sex took place then you will need to use ‘unreasonable behaviour’.
To cite adultery you will need to have found out about the affair within a six month period of submitting your divorce petition. The petitioner will need to have found it intolerable to live with the respondent after the affair.
You therefore could not use a past adultery as a reason if you have lived as a couple afterwards for six months. The only exception to the six month rule is if the adultery is still ongoing.
It must be your partner’s adultery and not yours. If both parties have had affairs then either can petition using adultery.
You will not need to name the person that your spouse was having an affair with.
It is still adultery even if you and your partner are separated. You may think that after you separate you no longer have any obligation to be faithful but this is not true in the eyes of the law. It is also true that you cannot use your spouse’s affair as a justification for your own affair.
Unreasonable Behaviour is where your husband or wife acts in a way that makes it intolerable for you to live with them.
You will need to describe both the actions or words of your spouse and show how it affected you negatively in your grounds for divorce. Your description will need to be specific and your own actions should not have caused them.
The behaviour will have had to have happened within the last six months and there needs to be more than one or two incidents. That does not mean that the incidents need to be of different types, only that the behaviours cannot be considered exceptional.
The range of behaviours that this could encompass is actually quite wide:
- Physical violence
- Verbal abuse, such as insults or threats
- Excessive drinking or drug-taking
- Refusing to pay towards shared living expenses
- Financial strain due to inappropriate practices. This could be excessive spending, running up debts or excessive financial loss though gambling.
- One partner having an inappropriate relationship with someone else. This does not mean a sexual relationship as that would be cited as adultery.
- It may be that intercourse is suspected but that your partner will not admit to it and there is no evidence.
- This could be a same sex affair which is still not considered adultery under UK law.
- An inappropriate relationship might include any actions that could be considered ’emotional unfaithfulness’. This could even be a disproportionate amount of time spent with someone else or a pet.
- Lack of needed career support
- Excessive or constant arguing. This could be due to previously unknown political or ethical beliefs.
- Lack of marital sex.
- Being emotionally distant, unavailable or not supporting the partner. This could be spending too much time on other activities such as working or hobbies.
- Unreasonable lack of socialising or refusal to interact with family.
- Refusal to help with household chores such as cooking or cleaning.
Desertion is where the husband or wife leaves their partner for a continuous period of two years without agreement and without consent.
You will need to demonstrate to the court that there was intent to end the relationship with the desertion and this can be very difficult to prove.
These cases will generally be if one spouse has left to maybe work or live abroad. To petition for desertion grounds for divorce they would have needed to tell you that they were not going to return and then not done so for a continuous period of two years. If your husband or wife is already away and they then inform you that they do not intend to return then you will have to wait two years from that point.
If you do not know where your spouse is then you will need to demonstrate to the court that you have tried to contact them.
It would normally be easier to cite unreasonable behaviour before desertion for instances like this.
Two Years Separation with Consent
You can petition for a divorce if you and your husband or wife have been separated for 2 years or more for a continuous period. In these cases your spouse will have to agree to the divorce.
Your spouse will have to agree in writing. This means signing an ‘Acknowledgement of Service form’ to show that they agree to the divorce as well as confirming that you are separated.
You will need to demonstrate that you have separate lives. To do this you will need to provide the court with details of your living arrangements. Addresses of where they lived and for what time periods.
Please note that it would be possible to show that you are living separately without actually living in a separate address. It may not always be financially possible for one of the couple to move out.
In these circumstances you will need to show that your lives within the house are separate. This will mean socialising, sleeping apart, eating apart and not sharing finances.
Five Years Separation
You can apply for divorce proceedings without consent if you and your partner have been living separate lives for 5 years or more. It will not matter if your partner does not agree with the grounds for divorce, the divorce can still proceed.
There is no automatic divorce for couples that have been apart for five years, it just means that the divorce will be uncontested. However they legally must be given an opportunity to respond.
If you do not know where your partner is then you will need to demonstrate to the court that you have tried to locate them. You can apply to the court to dispense with the service of divorce petition if you cannot find them.
If you believe that they are in the UK then you can apply for a court order to get their address records from government bodies.
You could hire a private investigator to find your spouse but they cannot legally give you the contact details without the consent of the person being found.