5 Facts of Divorce
Grounds for separations
This is the case where the respondent has had sexual intercourse with another person of the opposite sex and it has had such an injurious effect on the relationship that the petitioner can no longer tolerating living with the adulterous spouse. The adultery must be proven either by means of evidence or an admission from the other spouse.
You cannot invoke this fact if the extra-marital relationship of your spouse did not involve sexual intercourse, or if their sexual relationship was with somebody of the same sex. In either of these cases you may have to fall back on the facts of unreasonable behaviour or two year’s separation, if that applies.
NB: If you continue to live with the adulterous partner and let 6 months pass after the date on which you learned of your partner’s adultery, you will no longer be able to use the adultery as grounds for divorce. An exception is where the adultery is continuous or repeated; the 6 month period with start with the date or finding out about the last act of adultery.
In order to secure a divorce based on the fact of unreasonable behaviour, it must be clearly demonstrated to the court that the actions of the respondent are sufficiently intolerable that it is unreasonable to expect the petitioner to live with them.
You will need to give a detailed description of your spouse’s unreasonable behaviour and include this in the petition. Unreasonable behaviour encompasses all sorts of malevolent acts, so it is important to explain clearly all the traits and specific events which have made your spouse impossible to live with to have the best chance of getting your divorce granted. Doctor’s certificates may help to support your case if the behaviour has had a damaging effect on your health.
Medical reasons for the unreasonable behaviour should not preclude the acceptance of unreasonable behaviour as a valid fact upon which to sanction a divorce.
If using this fact it is important to act quickly, as long periods of cohabitation after an instance of unreasonable behaviour will weaken your case, especially if in excess of 6 months.
Distinct from separation, desertion is when a spouse parts from their husband or wife without their consent. Several conditions need to be met in order to obtain a divorce on the fact of 2 years of desertion. These are:
- The petitioner no longer lives with the respondent.
- This separation was against the wishes of petitioner.
- It is the intention of the respondent to permanently stop living with the petitioner.
- The respondent does not have reasonable cause for wishing to stop living with the petitioner, e.g. unreasonable behaviour.
This is a rare ground for issuing a divorce, as there are many caveats that render it unusable. Therefore it is only really worth considering if none of the other facts apply to you. Examples of such circumstances that preclude the use of this fact include:
- A decree of judicial separation granted by the court.
- The respondent made a reasonable offer to resume cohabitation that you unreasonably refused.
- The respondent has given you a reason to stay away from the home, for example, he/she commits adultery.
- Any attempts to reconcile may mean you have to wait longer before you can apply for divorce on this ground.
To be granted a divorce on grounds of separation the petitioner must prove that they have been living apart from the respondent for a continuous period of at least 2 years.
You will be deemed to have separated as long as you have lived at different locations for the necessary length of time. In the case of couples who have decided their marriage is at an end but still live in the same house, the court will consider the individual living arrangements of the couple to determine whether they can be classed as separated by law and thus whether a divorce can be issued. Things taken into account are whether certain activities are done together or separately, e.g. sleeping, cleaning, eating and paying bills.
If it can be proven that the separation has lasted for at least 5 years then the divorce can be won without the agreement of the respondent; if the duration of the separation is less than 5 years but more than 2 then consent must be obtained from the respondent.
NB: any attempts to reconcile over a period of 6 months or less will not jeopardize the granting of a divorce on this fact, but this reconciliation time must be added on to the required length of separation. For example, someone looking to divorces on the grounds of 5 years of separation who resumed cohabitation for 4 months of that time will need to wait until 5 years and 4 months since the time of separation.
Legal help for divorce
If you need clarification on any of these grounds for divorce, or any other aspects of the divorce procedure, you may benefit from a service offering legal advice over the telephone. It's cheaper than a solicitor and ideal for clearing up any doubts or concerns you may have.
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