The basic divorce law (UK) that outlines the divorce grounds is the Matrimonial Causes Act 1973. In order to terminate a marriage an applicant (petitioner) must apply to the court for the grant of a decree nisi and there after in order to finalise the proceedings the court must subsequently grant a decree absolute. To apply for a decree nisi a petitioner must show that the court has jurisdiction and that the marriage has subsisted for over one year. Proving the jurisdiction issue involves showing that either the petitioner or the petitioners spouse (respondent) have been habitually resident or domiciled in the relevant country.
To obtain a decree nisi it must be shown that the marriage has irretrievably broken down. Whether or not a marriage has broken down can, according to the legislation, only be proven if at least one of five facts is established as follows :-
That the respondent has committed adultery and the petitioner cannot be expected to continue living with the respondent.
Note:- The identity of the other adulterer need not be known and it is not necessary to name the person in the court papers however if adultery is denied by the respondent it can be difficult to prove against an unidentified third party which may mean that the petition fails. In the event of an unidentified party being involved in the proceedings it is always better to get the respondents tacit consent prior to issuing proceedings on this basis. The items outlined in this list are not divorce grounds but are facts supporting an allegation of irretrievable breakdown of marriage which is the sole reason for dissolution of the marriage allowed under divorce law (UK).
2. Unreasonable behaviour:-
That the respondent has been guilty of unreasonable behaviour and the petitioner cannot be expected to continue living with the respondent.
Note:- It is necessary to give examples of the respondents unreasonable behaviour in the petition and to outline why this has made it difficult to continue living with the respondent. Adultery or a close association with a third party may be used as an example without the necessity to prove the adultery if such proof would be difficult or impossible to obtain.
That the respondent has deserted the petitioner for a period of at least 2 years.
Note:- The date when the respondent left the matrimonial home and cohabitation ceased must be included in the petition together with an indication that cohabitation has not resumed since that time. Divorce proceedings cannot be issued until cohabitation has ceased for at least two years. If the exact date of the desertion is unknown then an approximation can be given provided that at least two years have passed.
4. Two years’ separation with consent:-
That the petitioner and the respondent have been living separately for at least 2 years and both agree to a divorce.
Note:- Both parties must agree to the divorce and the date of the separation and the reason for the separation must be included in the petitions particulars. If the exact date of separation is unknown then an approximation can be given provided that at least two years have passed.
5. Five years’ separation without consent:-
That the petitioner and the respondent have been living separately for at least 5 years whether or not the respondent agrees to a divorce.
Note:- It is not necessary to obtain the consent of the respondent however it will be necessary to give details of the date of the separation and reasons for the separation. If the exact date of separation is unknown then an approximation can be given provided that at least five years have passed.
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