The Grounds for Divorce (MLS Junior Jessie Smith explains)
There is only one ground for divorce and that is that your marriage has irretrievably broken down. There are however, five possible factors you can base this ground on. Essentially, it is five different ways to prove the marriage has broken down. These five factors are: adultery, unreasonable behaviour, dissertation, two-year separation with consent and lastly five-year separation (consent not necessary).
Adultery:
The rules around adultery can be found under s.1(2)(a) of the Matrimonial Causes Act (MCA). This has to be voluntary sexual intercourse between a man and a woman who are not married to each other but one of them are married to someone else. The petitioner has to find that the spouse is intolerable to live with after he or she has found out about the adultery. If it is found that the couple have lived together for a period of 6 months or more after the petitioner found out about the adultery, a divorce cannot be granted on this basis. As you can imagine, this is probably the messiest reasoning behind a divorce but quite difficult if the spouse hasn’t admitted to the adultery.
Unreasonable behaviour:
This can be argued to be the most straightforward ground for the breaking down of a marriage. This is because it is quite vague and actually only requires a low standard of unreasonable behaviour. It can also be used when other grounds cannot apply. For example, for adultery there has to be sexual intercourse. With unreasonable behaviour, if your spouse has done sexual acts with someone else that isn’t intercourse adultery can’t be used but unreasonable behaviour can. Also, unlike adultery, the petitioner and their spouse can go on living together and still file for divorce. The court uses a subjective and objective test under s.1(2)(b) to determine unreasonable behaviour which is “Would a right-thinking person think the petitioner could not be reasonable expected to live with the respondent taking into account their personalities?”.
Desertion:
Under s.1(2)(c) MCA the elements are set out for divorce on the basis of desertion. Cohabitation has to of ended with intent by the spouse. The petitioner must not have consented to this and there must have been no reasonable cause to withdraw from cohabitation.
Two-year separation with consent:
For this basis of divorce under s.1(2)(D) MCA, the couple can be separated and living under the same roof. However, they must be living separate lives for at least two years, for the divorce to be granted. The separation starts when one party believes the marriage has come to an end.
Five-year separation:
Under s.1(2)(e) MCA, if you and your spouse have been separated for five years or more, you will be able to file for divorce even if your spouse doesn’t agree too it. The respondent can prevent the divorce from being granted If the divorce would cause the respondent grave hardship, but this hardship must be caused by the marriage ending and not the breakdown.
Written by Jessie Smith
This article is for information only and does not constitute legal advice.
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