Q. My husband and I have separated and I want to apply for a divorce. Do I have grounds to dissolve the marriage?
A. To be able to petition for divorce, you must be able to prove that there are grounds for the divorce. This can be evidenced through one of five facts:
- Unreasonable behaviour
- Two years’ separation with consent
- Five years’ separation without consent
You have grounds for divorce if your spouse has committed adultery, however adultery has a very specific meaning within the context of divorce proceedings. To petition for divorce on these grounds you must be able to establish that your spouse has had sexual intercourse with another person of the opposite sex and as a result, you find it intolerable to live with them. Usually adultery is proved by an admission.
A petition based on adultery can be issued immediately.
If your spouses’ relationship with the other person involved is not of a sexual nature or is with someone of the same sex, in the context of divorce proceedings this is not classed as adultery. However, such behaviour could be included in a divorce petition on the basis of unreasonable behaviour.
Unreasonable behaviour is the fact most commonly relied upon by those seeking to obtain a divorce, as it entitles you to commence divorce proceedings immediately.
To establish this fact, you must prove that your spouse has behaved in such a way that you cannot reasonably be expected to continue to live with them. If you are relying on this ground then you will need to include in the divorce petition a number of examples of the behaviour you consider to be unreasonable. Examples of unreasonable behaviour could include:
- Violent, threatening behaviour or verbal abuse
- Excessive drinking or drug taking
- Financial irresponsibility
- No longer sharing any mutual interests and preferring to spend time with friends
- A lack of emotional support
- Prioritising career over family life
You can file for divorce on the grounds of desertion if your spouse has left you without your agreement for a continuous period of at least two years. To establish desertion, you must be able to show physical separation and an intention by your spouse to permanently end cohabitation.
Two years’ separation with consent
This fact can be established if you and your spouse have lived apart for a continuous period of at least two years and your spouse agrees to be divorced, which they would need to confirm in writing to the court.
It is worth noting that even if you are still living together, the courts can accept that you are separated if you have been leading completely separate lives. Living apart in the same household can be evidenced by sleeping apart, or not eating or socialising together.
Five years’ separation without consent
To establish this fact, you must have lived apart from your spouse for a continuous period of at least five years before the petition is filed at court. After five years’ separation you would not need your spouse to consent to the divorce proceedings.
For more information on grounds for divorce or to discuss any aspect of family law please contact Janine Hutson on 01772 258321. Janine is one of Harrison Drury’s divorce and family solicitors in Preston. We also have lawyers based in Lancaster, Garstang, Kendal and Clitheroe.