In England and Wales, you can only divorce if you have been married for at least one year. In these circumstances, it may be possible to seek a judical separation or anulment. There is really only one ground for divorce – the irretrievable breakdown of a marriage. This is proved by establishing one or more of the following ‘facts’:
1. Unreasonable Behaviour
You must show that your spouse has behaved in such a way that you cannot reasonably be expected to live with him or her. Unreasonable behaviour is now the most common fact on which to prove the grounds for divorce in England and Wales. In an unreasonable behaviour petition, the petitioner sets out a number of allegations against the respondent.
The court does not insist on really severe allegations of unreasonable behaviour in order to grant a divorce. Relatively mild allegations - such as devoting too much time to a career, having no common interests or pursuing a separate social life - may suffice. Using mild allegations may make it easier to agree the contents of the petition with your spouse.
You must prove through actual admission or through sufficient circumstantial evidence that your spouse has had sexual intercourse with another person of the opposite sex and that you find it intolerable to live with your spouse. If a sexual liaison short of sexual intercourse has taken place, it is suggested that the unreasonable behaviour ground is used instead.
It is usually best to avoid naming the other person involved as a co-respondent as this can make the proceedings more acrimonious, more complicated and more drawn out. If you wish to name the other person, you should seek legal advice.
Adultery can be used as the basis for a divorce petition whether you and your spouse are still living together or have separated. Not more than six months must have elapsed since you became aware of the adultery before the petition is sent to the court, unless the adultery is continuing.
Please note - you cannot petition for divorce on the grounds that you have committed adultery. Your spouse could divorce you on these grounds or you will need to use one of the other grounds - most commonly unreasonable behaviour.
Two Years' Separation - By consent you and your spouse have been living apart for at least two years immediately preceding the presentation of the petition and you both agree to a divorce.
Five Years' Separation Without Consent - You and your spouse have been living apart for at least five years immediately preceding the presentation of the petition. In this instance, your spouse need not consent to the divorce.
This is where your spouse has deserted you for a continuous period of at least two years.
Grounds for Divorce in Scotland
All of the five facts above apply in Scotland except desertion that has now been abolished as a ground for divorce. Also, you only need to have lived apart for 1 year in Scotland to be granted a divorce and not 2 years as in England and Wales. The five-year separation fact is also reduced to 2 years if you live in Scotland.
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