There is only one ground for divorce, this is that the marriage has “irretrievably broken down”. However, the reason for the breakdown can be given as one of the following 5 reasons
This ground can be used if the person who is issuing the divorce proceedings believes that the other party has behaved in a way, that they cannot reasonably be expected to remain living with them.
The Petitioner is required to supply 5 or 6 paragraphs within the Divorce Petition of such behaviour. There is no set guide to what is considered unreasonable behaviour but this could include the following:
- Spending joint monies selfishly
- Violence towards the other party
- Excessive hours of work
- Failing to deal with the emotional or other needs of the other party
- Physical or mental bullying
- Improper conduct towards the children
The Court must be satisfied that the spouse has committed adultery and that the person issuing proceedings finds it intolerable to live with the spouse.
Adultery is voluntary sexual intercourse between a man and woman who are not married to each other.
A relationship with a member of the same sex is not regarded as adultery and if this were the case another ground would have to be considered.
If proof of the adultery does not exist or the adultery is not admitted then the ground of adultery is very difficult to prove.
To overcome the problems of proving the adultery, we would usually ask the spouse who has committed adultery to sign a “Confession Statement” where he/she admits to the adultery.
The person with whom the relationship was conducted with is called the “Co-Respondent” and can be brought into the proceedings although it is inadvisable to do so as it can increase the complexity of the divorce. For this reason, we usually advise that the Co-Respondent is not named within the proceedings.
You cannot proceed on the basis of adultery if you have lived together as a couple for over 6 months after you knew about the adultery.
2 years separation by Consent
This ground can be used if the parties have lived separately from each other for at least 2 years and the other party consents or agrees to the divorce proceedings.
During the 2-year period you can co-habit for up to 6 months if you reconcile (get back together) which will be added to the 2-year period but will not stop it running.
For instance, if a couple break up and live apart for 3 months then get back together for 2 months then they still have a further 21 months separation before they can issue on this ground.
5 Years Separation
If the parties have lived apart for at least 5 years this ground could be considered. The other party does not need to consent to this divorce but they are allowed to apply for financial claims against the person who is issuing the proceedings.
Desertion after 2 years
This ground could be considered if the other party has deserted the person who is issuing the proceedings, for a period of at least 2 years and they did not consent to this desertion. In practice this ground is very rarely used and it is generally recommended that proceedings are issued on other grounds.