Ground for divorce or dissolution
You have to prove one thing to get a divorce or end a civil partnership. This is that your marriage or civil partnership has broken down 'irretrievably' - so badly that you think it cannot be saved. You do this by explaining why it has broken down using one of reasons the law allows you to choose from. The law calls these reasons 'facts'.
If you are married you have to choose one reason (fact) from five possible ones. If you are in a same sex marriage or a civil partnership you have to choose one from four out of the same five. Not all facts need the other person’s agreement.
Only one member of a couple has to explain why the relationship has broken down. This makes it hard to avoid suggesting that it is all to do with what the other person has or has not done when in truth it is rarely just one person’s fault. But this is how you have to do it. And it’s why it is a good idea to agree the reason and supporting details with your husband or wife or civil partner if you can. If the other person has some influence over what you say about the breakdown of your relationship it can help maintain good relations with them. This can really help if you also need to make arrangements about your children or sort out your joint finances.
Part 5 of the petition asks you to show which fact you are choosing by ticking the relevant box. You then give more detail explaining the reason in Part 6 in the box under the heading: ‘Statement of case’. The detail you give in Part 6 must match the fact you choose in Part 5. So, for example, if you tick fact 4 (two years separation) but then accuse your ex of adultery (fact 1) in your statement of case, the court office will have to return your petition to you - which causes delay.
Here we set out each of the five facts and give you an example of what a statement of case might look like for each fact.
Fact 1 – ‘the Respondent has committed adultery and the Petitioner finds it intolerable to live with the Respondent’. This reason is not available to people in a same sex marriage or a civil partnership.
You need to prove that your husband or wife ‘committed adultery’ (had full sexual intercourse with a person of the opposite sex who they were not married to while they were married to you) and that having found out about the adultery you find it intolerable to live with them. The usual way of proving adultery is either by getting a written confession from your husband or wife, for example in the form of texts, emails or Facebook posts or they admit to it by signing and returning the ‘acknowledgement of service’ form. For more information about acknowledgement of service, see Dealing with the acknowledgement of service form.
You don’t have to name the person that your husband or wife had sex with. In most cases it is better to avoid doing this; it doesn’t get you anywhere and may increase the cost. You can just say the adultery took place with an un-named person.
If you name the co-respondent they will be sent a copy of your petition and become involved in the proceedings. This can lead to complications and delays. You should get some legal advice before you do this.
You cannot apply for a divorce on the basis of your own adultery. It is up to your husband or wife to divorce you. If they will not do this, you cannot make them. You will have to wait until you have a reason of your own.
If your husband or wife will not admit the adultery, so for example they refuse to sign the acknowledgment of service form or deny the adultery, the case becomes ‘defended’. This means that the court will decide whether the adultery took place based on the evidence at a hearing. If you think this is likely, you are better off choosing a different ‘fact’ because it is difficult to prove adultery. For example, you could use 'unreasonable behaviour' and briefly explain that your husband or wife is having or has had a relationship with someone else and why you think this.
If you go on living with your husband or wife for more than 6 months after you find out about their adultery, you cannot divorce them using adultery as the reason. But if they commit adultery again and this time you don’t go on living with them, you can start divorce proceedings based on this new incident of adultery.
|Example of a statement of case|
The respondent told me on the [insert date here] that he had committed adultery. I was devastated and decided on the [insert date here] to move out of the matrimonial home. I cannot forgive the respondent and believe his adultery has brought our marriage to an end.
Fact 2 – ‘the Respondent has behaved in such a way that the Petitioner cannot reasonably be expected to live with the Respondent’.
This is the reason most people use. Your husband or wife or civil partner does not have to admit to the unreasonable behaviour. They can make it clear on the acknowledgement of service form that they do not accept what you say about them but that they will not defend the case.
You must give examples of your husband’s or wife’s or civil partner’s unreasonable behaviour and the impact it has had on you. You might want to describe the first, the worst and end with the most recent example of their unreasonable behaviour. You will not need more than 5 or 6 examples. Include dates where possible, approximate ones if you cannot be exact. So, for example, you can say: ‘Just before Christmas 2016.....’
If you can agree what you are going to say with the other person and you know they will not defend your petition, you can keep what you say to the minimum necessary in the hope this will reduce the possibility of causing offence and encourage their cooperation.
‘Unreasonable behaviour’ covers a wide range of different behaviours. Here are some examples:
- having a relationship with someone else where you cannot prove adultery
- being a workaholic and neglecting you
- refusing to take part in family life
- continually undermining you and putting you down
- causing financial difficulties
- subjecting you to an atmosphere of constant criticism and disapproval
- going out with friends and leaving you on your own night after night
- intimidation, insults, threats, bullying
- physical violence
- drug taking
|Example of a statement of case|
The respondent constantly belittled me in front of my family even though I asked him to stop. I felt embarrassed and ashamed.
On Christmas Day 2016, he told my family I was a useless cook. He scraped the dinner I had cooked for him off the plate and into the bin in front of my parents.
The respondent is financially irresponsible and spent money on himself instead of contributing to household bills. This caused me a lot of anxiety.
The respondent has had numerous affairs and because of his behaviour I moved out of the home on the [insert date here] and have never lived with him since.
Fact 3 – ‘the Respondent has deserted the Petitioner for a continuous period of at least two years immediately preceding the presentation of the petition’.
This reason is rarely used. If you have been living apart for two years and both want a formal end to the relationship, it is easier to use Fact 4 - two year’s separation with consent.
If you decide to use this reason, you must be able to show that your husband or wife or civil partner:
- has left you for a period of at least two years in the past two and a half years,
- that they did not have a good reason to leave you, and
- that you did not agree to them leaving.
It is okay to use this fact even if you have lived together again for a total of up to 6 months since you first separated in this two and a half year period. But you cannot use it if you get back together again for more than 6 months. If you live together for more than six months and then your husband or wife or civil partner leaves you again, you will have to wait another two years before using this fact or choose a different one. You cannot use this fact if your husband or wife or civil partner has reasonable cause to stop living with you (for example, you behaved unreasonably).
|Example of a statement of case|
The respondent told me she was going out to meet some friends on the evening of the [insert date here]. The respondent never returned home and later that night she emailed me to tell me that our relationship was over and she did not intend to come back to me. She has not been home since.
Fact 4 – ‘the parties to the marriage/civil partnership have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition and the Respondent consents to the decree/order being granted’.
You must have been separated for at least two years and both agree to the divorce or dissolution in writing. If your husband, wife or civil partner won’t agree or agrees but then withdraws their agreement later, then you cannot get a divorce or end your civil partnership based on this fact.
You cannot use this reason if you get back together again for more than 6 months any time after you first separate. In these circumstances, you will have to wait another two years after your husband or wife or civil partner leaves you again before using this fact or choose a different one.
|Example of a statement of case|
The respondent moved out of the home we shared jointly on the [insert date here]. We have never lived together since and the respondent consents to the divorce.
Fact 5 – ‘the parties to the marriage/civil partnership have lived apart for a continuous period of at least five years immediately preceding the presentation of the petition’.
You must have lived separately for at least 5 years immediately before you start your proceedings. You do not need your husband’s, wife’s or civil partner’s agreement. There is very little they can do to prevent you divorcing them or ending the civil partnership if you are able to use this fact. They can try objecting to the proceedings by saying that it will result in grave financial or other hardship for them.
Example of a statement of case
I moved out of the home we shared jointly on [insert date here]. We have never lived together since.
What's a 'continuous' period?
Both Fact 4 and 5 refer to having to live apart for a ‘continuous’ period. This normally means without any interruption. In practice the law allows people the chance to get back together for a while to see if they can make things work. So if you want to use Fact 4, as long as you have not lived together again for more than 6 months in total, you can still count two years from the date when you first stopped living together. But you cannot include the times when you are back together. So, for example, if you separated on 1st July 2014, but between then and September 2016 lived together again on two separate occasions for a total of 3 months, you would have to wait until October 2nd 2016 before you could start proceedings. Only then have you been separated for two years. If you do not live together again after you separate then the two year period comes around more quickly.
If you want to use Fact 5, as long as you have not lived together again for more than 6 months in total, you can still count your 5 years from the date when you first stopped living together. But you cannot include the times when you are back together. These do not count.
What counts as ‘living apart’?
Whether you are ‘living apart’ or not depends on whether you are living with each other ‘in the same household’. This is not the same thing as living in the same house.
It is possible to be separated and no longer living together as a couple even though you are both living under the same roof – perhaps because neither of you can afford to move out yet. For a court to accept that you are ‘living apart’ in these circumstances, your communal life together has to end. So no more sleeping or eating together or doing household chores such as cooking, cleaning, washing or ironing for each other. This way even though you may be living in the same building, you will not be living in the same household.
Despite the fact that the system encourages people to co-operate with each other and share the care of any children they have, the more co-operative your living arrangements, the more difficult it may be to use separation as the reason for the irretrievable breakdown of your relationship.
You can be physically separated from each other perhaps because one of you is in prison or working abroad for a few months or on military service abroad, for example, but this does not necessarily mean you are ‘living apart’. In these circumstances, if you don’t see your marriage or civil partnership as being over then you are not ‘living apart’ as defined by the law in England and Wales.