In England and Wales, you must have been married for at least a year before you can apply for a divorce.
Only one ground for divorce
It is a popular misconception that there are five grounds for divorce. There is actually only one ground for divorce, which is that the marriage has broken down irretrievably.
However, this is proven by one of five facts; which is where the confusion may have arisen.
This is where your spouse has had sexual intercourse with someone else of the opposite sex. The law recognises the act of adultery as sexual intercourse between a man and a woman. If you continue to live together as a couple for 6 months after you found out about any act of adultery, then you cannot give adultery as a reason for the divorce.
Same sex couples and adultery
Where a spouse has had sexual intercourse with a person of the same sex, this is not recognised as adultery in the eyes of the court and cannot be given as a reason for divorce. In this case, you would use unreasonable behaviour.
The same even applies to couples in same sex marriage / and a civil partnership who wish to divorce due to infidelity on the part of one spouse (divorce under a civil partnership is called Dissolution). In the eyes of the divorce courts, adultery is confined to sex between a man and a woman.
Unreasonable behaviour can be relied upon where you feel that your spouse has behaved in such a way that you cannot reasonably be expected to live with them.
To prove desertion you must establish your spouse’s absence from the marital home for a period of more than 2 years in the past 2 and a half years, that they left with the intention of ending the marriage and this was done against your will. Desertion is not relied upon frequently because it is often difficult to prove.
Two years separation
You can apply for a divorce if you have been separated for more than 2 years and both agree to the divorce. Your husband or wife must agree in writing. You can be separated while living in the same home as long as you are not living together as a couple (for example you eat and sleep apart), although you will need to explain your living arrangements.
Five years separation
You can apply for a divorce if you’ve been separated for at least 5 years, even if your husband or wife disagrees.
The divorce process
Andrew comments "There are normally two aspects to getting divorced. The first concerns the process of dissolving the marriage so that you cease to be husband and wife. The second involves the allocation of financial resources to each of you as a consequence of divorce. We are here to guide you and answer your questions throughout the process. Please get in touch if you need clarification on any of the points raised."
Our Family Team are happy to discuss any issues that this raises for you. If you have any questions, you only have to ask us at Frettens. Please call 01202 499255 and Andrew or a member of the team will be happy to chat about your situation and your particular requirements.