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DIVORCE & SEPARATION
These notes are intended to give you a very general idea of what is involved in obtaining a divorce.
GROUNDS FOR DIVORCE
There is only one ground for divorce and that is that the marriage has broken down irretrievably. The person who starts the divorce proceedings is known as ‘the Petitioner’ and their spouse is called ‘the Respondent’. Proceedings for a divorce cannot be started until the parties have been married for at least one year.
To satisfy the court that there has been an irretrievable breakdown 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. This fact is commonly known as “unreasonable behaviour”.
- The Respondent has deserted the Petitioner for a continuous period of at least two years immediately before the start of the divorce.
- You have lived apart for a continuous period of at least two years immediately before the start of the divorce and the Respondent consents to a decree being granted.
- You have lived apart for a continuous period of at least five years immediately before the start of the divorce.
Most divorces are based on facts (a) ‘adultery’ or (b) ‘behaviour’. ‘Adultery’ is an act of sexual intercourse with a person of the opposite sex. To be able to rely on this in the divorce the adultery must have happened in the six months before separation. It is not good practice to name the person with whom the adultery took place or to involve them in the court proceedings and indeed it may delay or complicate the divorce proceedings if a “Co-Respondent” is named.
The test for ‘behaviour’ is subjective, it does not need to consist of extensive violence, drug or alcohol addiction or other extreme behaviour. A combination of less obvious behaviour can be sufficient. Often issues like working too much (or not working enough), showing too much (or too little) affection, combined with a number of other similar factors are used.
If you would prefer to regularise your separation without actually divorcing there are two options available:-
- Judicial separation;
- Separation agreement