A couple must have been married for at least one year before divorce proceedings can be started.
The person who starts the divorce proceedings is known as the “petitioner” or “applicant” and the other spouse is known as the “respondent”. To be eligible to start divorce proceedings in England and Wales, the petitioner must meet at least one of the jurisdictional criteria, which are based on the habitual residence or domicile of one or both parties to the marriage.
There is only one ground for divorce, which is that the marriage has irretrievably broken down. To satisfy the court that the marriage has irretrievably broken down, the petitioner must prove one of the following five facts:
- The respondent has committed adultery and the petitioner finds it intolerable to live with the respondent.
- The respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent.
- The respondent has deserted the petitioner for a continuous period of at least two years immediately before the start of the divorce.
- The parties have lived apart for two years and the respondent agrees to the divorce proceedings.
- The parties have lived apart for five years (whether or not the respondent agrees to the divorce proceedings).
Most divorces are based on either adultery or unreasonable behaviour, as these are the only two facts that allow the petitioner to begin divorce proceedings immediately, without waiting for a period of at least two years.
The petitioner cannot rely on adultery as a fact if, after becoming aware of the adultery, the parties cohabited for a period (or periods when added together) exceeding six months. There is no need to name the person with whom the adultery took place.
The fact of unreasonable behaviour involves consideration of the nature of the respondent’s behaviour and its effect on the petitioner. It is a question of fact whether the behaviour is sufficient to entitle the petitioner to rely on it to support the irretrievable breakdown of the marriage. In practice, however, the allegations of behaviour do not need to be serious and the petition can set out mild particulars of behaviour to minimise acrimony, as long as the effect of the behaviour on the petitioner is adequately described. Particulars could, for example, include the respondent working too much, or failing to demonstrate love and affection towards the petitioner.
We can provide specialist advice about divorce proceedings and if you decide to divorce we can make sure the process runs as smoothly as possible.