GROUNDS
There is only one ground for divorce and that is the irretrievable breakdown of the marriage.Irretrievable breakdown is proved on one of five facts:
- That the Respondent (the guilty party) has committed adultery and the Petitioner (the party who is starting the divorce proceedings) finds it intolerable to live with the Respondent
OR
- That the Respondent has behaved in such a way that the Petitioner can not reasonably be expected to live with the Respondent
OR
- That the Respondent has deserted the Petitioner for a continuous period of 2 year
OR
- That the parties have lived separately for 2 years and the Respondent consents to the divorce
OR
- That the parties have lived separately for 5 years
ADULTERY
This involves the Respondent in having had consenting sexual intercourse with someone other than the Petitioner during the course of the marriage. Acts short of penetrative sex do not count as sexual intercourse (the Clinton defence!) and neither do homosexual acts. These would however be enough for a petition based on unreasonable behaviour as would an inappropriate relationship with another man or woman not involving adultery. The fact that the parties have separated at the time when the new sexual partner is taken does not prevent it from being adultery.BEHAVIOUR
It will be seen from the above definition that it is a bit inaccurate to call this "unreasonable behaviour". It is the effect of the behaviour on the Petitioner that is relevant and not the intention of the Respondent. There is case law that shows this. An unfortunate husband with pyromaniac tendencies argued that his behaviour in setting fire to the matrimonial home did not entitle his wife to a divorce because he was, at the time of the incident, insane. The court held that it did not matter whether the husband knew what he was doing. What mattered was that the wife felt she could not continue to live with him and the court thought that it was reasonable for her to feel that way. It was after all the matrimonial home to which he had set fire!DESERTION
This rarely applies in practice. Desertion is different from separation in that it requires the separation to have been entirely unilateral without even an implied agreement by the petitioner to the separation. We would suggest that you use the separation and consent ground below.2 YEARS SEPARATION AND CONSENT
The definition above almost says it all. However a couple can be living separately even though they remain under the same roof if they do not have any common life together, do not cook, clean or otherwise look after each other and sleep separately. It is all a matter of fact and degree. Before starting a petition on this ground make sure that the other side will in fact consent.5 YEAR SEPARATION
Again simple enough but there are a couple of points to bear in mind.For both 5 and 2 year separations living together for a period of 6 months or more or for periods totalling 6 months within the period of separation on which the divorce is based will disentitle the parties from a divorce.
For the 5 year separation it does not matter that the other party does not consent. However, he or she can apply to the court to stop a decree absolute from being granted until the court has considered the financial position after divorce. This is potentially important. A separated married woman would, if her estranged husband died, be his widow. She would qualify for widow's benefits under any pension or life plan he had. If the decree absolute has been granted she is not a widow. She is therefore entitled to safeguard her position until the court has decided what her financial award should be by applying to prevent the grant of a decree absolute.
TIME LIMITS
There are time limits in respect of adultery and behaviour petitions. Although the petition can be issued at any time the Petitioner should not continue to live with the Respondent for too long after finding out about the wrongdoing. If the parties live together for a period of 6 months or periods totalling 6 months after the last incident of behaviour upon which the Petitioner relies or after the date upon which Petitioner found out about the adultery then the right to use it as a reason for divorce will be lost and the complaint will be deemed to be forgiven.This is not a problem where the Respondent's behaviour is continuing or where he or she continues to commit adultery with one or more other people. Each incident starts the clock running again. However, it will be difficult to advance the facts necessary to prove irretrievable breakdown if the Petitioner is still living with the Respondent despite finding it intolerable so to do or despite the behaviour being such that he or she cannot reasonably be expected so to do.
