Legal grounds for divorce

When you submit a petition for divorce (Form D8), you will need to specify one or more reasons why you are seeking a divorce. Under the law of England and Wales there are only five possible reasons you can choose from. These are:

  • Adultery
  • Unreasonable behaviour
  • Desertion (for at least two years)
  • Separation for two years (the spouse/civil partner must consent to the divorce)
  • Separation for five years

It’s important to be clear exactly what each of these scenarios means in practice, and when you can and cannot use them as grounds for divorce. The following pointers should help.

How soon can I petition for divorce?

The earliest that a divorce petition can be submitted is one year after the date that you were legally married / entered into a civil partnership. Before this time, if you feel it is necessary, you can petition for a judicial separation instead.

Under certain circumstances you can also have a marriage annulled.

Can I claim adultery took place?

If your spouse has sexual relations with someone other than you who is a member of the opposite sex, this is classed as adultery. It’s important to note this narrow definition, because adultery law has not yet caught up with current same-sex marriage legislation. For example, you cannot claim adultery if you are in a same-sex marriage and your spouse has sexual relations with someone else of the same sex. For a similar reason, adultery does not apply to civil partnerships, only to marriages.

In cases of infidelity in a same-sex marriage, the Petitioner will usually claim ‘unreasonable behaviour’ instead. This is likely to remain the case until the law catches up.

What counts as unreasonable behaviour?

Unreasonable behaviour is a very broad term, and can cover many (though not all) issues that can cause a marriage to break down. Typical examples include:

  • Violent, threatening or abusive behaviour
  • Excessive drinking or gambling
  • Financial irresponsibility that causes undue hardship or stress
  • Having an intimate affair with someone outside the marriage / civil partnership
  • Refusal to socialise with spouse / civil partner
  • Refusal to talk about or resolve these issues

This is not an exhaustive list. However, you can see that several of these issues may not be clear-cut, and that one person’s idea of ‘financial irresponsibility’ (for example) may be very different from another’s. If your spouse defends the divorce, the court will need to decide what counts as unreasonable behaviour and what is within the normal bounds of married life. Broadly, you must be able to show that the marriage has broken down irretrievably.

What does desertion mean?

Desertion is where your spouse/civil partner leaves you without your consent and goes to live somewhere else. If you are claiming desertion, you need to be able to state when this first happened and how it came about, and confirm that you have lived apart since then (which must be a period of at least two years).

Can we be ‘separated’ if we still live in the same home?

To claim separation, you and your spouse/civil partner do not necessarily have to be living in different homes. Two people sharing the same home can be classed as separated if they maintain separate lives and don’t live as a couple. For example, if you don’t sleep, cook or eat meals together, or share your leisure time, this will support your claim that you are separated.

If you have been mostly separated but with periods of living together as a couple during that time, these periods must be less than six months in total if you want to use separation (or desertion) as a reason.

Does the divorce have to be someone’s fault?

You may feel that none of the legal grounds for divorce apply in your situation, or that you don’t want to apportion blame to your spouse/civil partner if you have simply grown apart. Unfortunately, the ‘no-fault divorce’ does not yet exist in British law. In this situation, the best option may be to agree that some form of ‘unreasonable behaviour’ has taken place, serious enough to be recognised by the court but not so severe that it causes unnecessary bad feeling. An alternative option may be to separate for two years and then divorce with consent.

Does divorce ever happen automatically?

There are a number of myths surrounding divorce. One of the most persistent is that a couple separated for five years or more will be automatically divorced. This is not true – only a court can grant a divorce, so you will still need to go through the divorce process. However, the divorce process will certainly be easier after a five-year separation, as it cannot then be opposed.

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