You may be surprised to learn that there is in fact only one ground for a divorce – the legal test is has your marriage has irretrievably broken down? If you have answered yes to this question, then you will need to provide evidence of the irretrievable breakdown based on one of the following 5 reasons, which are called “facts”:
For this fact you must prove to the Court that your husband or wife has had voluntary sexual intercourse with a person of the opposite sex and that you find it intolerable to continue to live with them. In practice, you will need an admission from your husband or wife that they have committed adultery or be able to provide relevant details or evidence of the adultery.
You should be aware that you cannot rely upon this fact if you continue to live with your husband or wife for a period of more than 6 months after the adultery has been discovered.
This fact cannot be used by the spouse who has actually committed the adultery.
This is the most common fact which is used to start a divorce. For this fact, details have to be provided setting out examples of the ways in which your husband or wife has behaved which means that you cannot reasonably be expected to live with them. Unreasonable behaviour is not defined and can cover serious issues such as violence, verbal or emotional abuse to more trivial matters such as failure to provide affection, secretive behaviour or financial irresponsibility.
This is the least commonly used fact which is used to start a divorce. This fact covers the situation in which your husband or wife has left you without your agreement for a continuous period of at least 2 years.
2 years’ Separation with Consent
You can begin a divorce using this fact if you have lived separate and apart from your husband or wife for a continuous period of at least 2 years and they agree to a divorce. It is a good idea to confirm this agreement in writing from your husband or wife before starting the divorce using this fact.
It is not always necessary that you and your husband or wife have actually separated and are now living in two separate homes. It is possible to live under the same roof but to maintain two separate households i.e. separate bedrooms, not cooking or cleaning for each other, not socialising together – effectively, both of you have a key to the same property but come and go as you please.
But remember, to use this fact separation on its own is not sufficient, both of you must also agree to the divorce.
5 years’ separation
This fact covers the situation where you have lived apart from your husband or wife for a continuous period of at least 5 years. Again, it is not a requirement that you are living in the same property, so long as you are maintaining separate households and leading separate lives. The main difference between this fact and the 2 years’ separation fact is that you do not need the agreement of your husband or wife.
If you would like further information or advice in relation to starting a divorce, please contact CSL Law.