The five facts you can use to establish grounds for divorce

There can be a little confusion as to what is meant by ‘grounds for divorce‘. Technically, there’s only one ground – that your marriage has broken down irretrievably (Section 1(1) Matrimonial Causes Act 1973). Note that for civil partners, the equivalent process is dissolution and the relevant  provisions are contained in the Civil Partnerships Act 2004. These mirror the Matrimonial Causes Act in effect so where we have referred to the MCA and the term spouse in this article, the same applies to civil partners unless otherwise stated.

In order to show the Court that your marriage has broken down, you must prove that at least one of these five facts exists. The five facts are set out at Section 1(2) of the Matrimonial Causes Act.

They are:

Fact A: Adultery and intolerability

Fact B: Behaviour

Fact C: Desertion

Fact D: Two years of separation (with consent)

Fact  E: Five years of separation

Quite simply, if you cannot show that one of the above facts exists, you cannot get a divorce.

Perhaps strangely, there does not need to be a relationship between the fact and the breakdown of the marriage. So, for example, if your wife leaves you (so arguably at this stage the marriage has broken down) and then goes on to commit adultery, it is irrelevant that the breakdown of the marriage wasn’t caused by her adultery. You can use fact A as evidence that the marriage has broken down irretrievably.

This system of providing a reason for the marriage breaking down is one of the reasons why divorce can be so messy. Blaming one person or the other for the breakdown causes ill feeling. Thankfully, no-fault divorce is on the horizon. In the meantime, you and your spouse will have to choose a reason and one of you will have to file the petition based on this reason.

If the Court is satisfied that the reason you have given proves the marriage has broken down irretrievably, it must  grant a ‘decree nisi’. This is the first stage of divorce. If however the Court has any grounds to believe the marriage has not broken down, it will not grant the decree. A common reason is where a couple starts living together again before the decree is made.

Fact A: Adultery and intolerability

The fact is that the Respondent (i.e. the person who is not applying for the divorce) has committed adultery and the Petitioner (i.e. the person applying for the divorce) finds it intolerable to live with the respondent.

It is necessary to prove both the adultery and that it is intolerable to live with the person.

This fact cannot be used to dissolve a civil partnership.

“Adultery” by definition can only be committed with someone of the opposite sex. Past case law defines it, perhaps archaically, as “adultery as voluntary sexual intercourse between two persons of the opposite sex, one or both of whom is or are married, but not to each other.”

In most cases, the Respondent will just sign a confession statement or answer “yes” to the question on the Acknowledgement of Service form that is sent to them. However, if this doesn’t happen, other ways of proving the adultery include:

  • The fact that the Respondent gave birth to a child where there is proof that the husband is not the father;
  • Evidence in Children Act proceedings that the Respondent has fathered a child with someone other than the Petitioner;
  • Certain circumstantial evidence such as an enquiry agent’s report showing the Respondent to be cohabiting with a member of the opposite sex;
  • The Respondent is convicted of a crime in the criminal court that includes intercourse.
  • The Respondent was found to have committed adultery in earlier proceedings.
  • The Petitioner has already been granted a decree of judicial separation on the grounds of adultery.

Proof of intolerability is usually not problematic and is subjective. The Petitioner simply has to convince the Court that they find it
intolerable to live with the Respondent, and this can be by means of a statement.

Fact B: Behaviour

If using this ground, the Petitioner needs to show that the Respondent has behaved in such a way that the Petitioner cannot be reasonably expected to live with the Respondent.

This is an OBJECTIVE test – it means the Court will make a judgement about the Respondent’s behaviour and its effect on the petitioner. So unlike the test for intolerability above (where the Petitioner can simply provide a statement to the Court which will be taken on face value) the Court will actually decide whether the Petitioner has established this fact on the basis of the evidence they give.

However, the Court will take into account the history of the marriage and the personalities of each spouse. So, for example, in O’Neill v O’Neill [1975] 1 WLR 1118, the Respondent, having retired, purchased a flat for himself, his wife and his teenage daughter and began extensive renovation. This included mixing cement in the living room and leaving the toilet without a door for eight months, which his wife and daughter found embarrassing. Having endured two years of this behaviour, the wife left and the Court found she  was entitled to a decree on the basis of Fact B.

Fact C: Desertion

This is available where the Respondent has intentionally deserted the Petitioner for a continuous period of at least two years without the Petitioner’s consent.

Fact D: Two years’ separation and consent

This is available where the parties have lived apart for a continuous period  of at least two years before the divorce petition is made, and where the Respondent consents to a decree being granted.

Fact E: Five years’ separation

This is available where the parties have lived apart for a continuous period  of at least five years before the divorce petition is made. It does not matter whether or not the Respondent consents – the Petitioner simply needs to show that they have lived apart.

There is an odd defence to Fact E – that is, the dissolution of the marriage would result in grave financial or other hardship to the Respondent
and in all the circumstances it would be wrong to dissolve the marriage. In deciding whether this defence should be allowed, the Court will take account of all the circumstances, including the parties’ conduct, the interests of the parties, and the interests of any children or
other persons concerned.

Note that the hardship must arise from the divorce, not simply from the breakdown of the marriage. If the hardship has already arisen because of the breakdown, the divorce will not add to it.

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