Grounds for divorce in England and Wales
In England and Wales, you can only divorce if you have been married for at least one year. There is only one basic ground for divorce: the irretrievable breakdown of the marriage. You can prove irretrievable breakdown by establishing one or more of the following 'facts' for divorce:
Fact A. Adultery
You must prove that, either through actual admission or through sufficient circumstantial evidence, your spouse has had sexual intercourse with another person of the opposite sex and that you find it intolerable to live with your spouse. If a sexual liaison short of sexual intercourse has taken place, it's suggested that the unreasonable behaviour ground is used.
You can name the other person involved as a co-respondent but this isn't essential and can have serious consequences. Doing so can make the divorce proceedings more acrimonious, more complicated and more drawn out. It's, therefore, usually best to avoid naming a co-respondent. If you wish to name the other person in your divorce proceedings, you should take legal advice before doing so.
Adultery can be used as the basis for a divorce petition, whether you and your spouse are still living together or there has been a separation, but, in either case, not more than six months must have elapsed since you became aware of the adultery before the divorce petition is sent to the court.
Fact B. Unreasonable behaviour
You must show that your spouse has behaved in such a way that you cannot reasonably be expected to live with them. Unreasonable behaviour is now the most common fact on which to prove the ground for divorce in England and Wales. In an unreasonable behaviour divorce petition, the petitioner sets out a number of allegations against the respondent.
These allegations might include references to excessive drinking or financial extravagance, for example; but it's worth bearing in mind that the court doesn't insist on really severe allegations of unreasonable behaviour in order to grant a divorce. Relatively mild allegations, such as devoting too much time to a career, having no common interests or pursuing a separate social life may well suffice. Using mild allegations may also make it easier to agree a divorce petition with your spouse in advance.
Fact C. Desertion
Where your spouse deserted you without your consent for a continuous period of at least two years; this fact is almost never used.
Fact D. 2-year separation
By consent, you and your spouse have been living apart for at least two years immediately preceding the presentation of the divorce petition and you both agree to a divorce.
Fact E. 5-year separation
You and your spouse have been living apart for at least five years immediately preceding the presentation of the divorce petition. In this instance, your spouse doesn't have to consent to the divorce.
More information
You can find out more about the separation and divorce process in Lawpack's DIY Divorce Kit , which shows you how to make your own DIY divorce and save £££s in legal fees.
Alternatively, if you need legal help with the divorce process, then our fixed price Divorce Online Service can give you expert guidance at a low cost price - from just £68.
Grounds for divorce in Scotland
There are two ways you can divorce in Scotland - by using the 'simplified divorce procedure' or the 'ordinary divorce procedure'.
The simplified divorce procedure is simple to do and it means that you can do your own DIY Divorce . The ordinary divorce procedure is more complicated and you need to take legal advice .
To divorce in Scotland, you, or your spouse, must have lived in Scotland for the year preceding the divorce, or you must consider Scotland as your principal place of residence.
To use the simplified divorce procedure and to do your own DIY Divorce , your marriage must have irretrievably broken down and you must meet the following criteria:
- The divorce must be uncontested.
- You must have no children under the age of 16.
- Both of you must not be seeking any financial orders from the court.
- You must have been separated for one year by consent or a period of two years with no consent. The 1-year separation ground for divorce in Scotland means that, by consent, you and your spouse have been living apart for at least one year in Scotland, immediately preceding the presentation of the divorce petition and you both agree to a divorce. For the 2-year separation ground for divorce in Scotland, you and your spouse must have been living apart for at least two years, immediately preceding the presentation of the divorce petition. With the two-year ground for divorce, your spouse doesn't have to consent to the divorce.
If you have minor children or you have been married for longer than two years, you will need to use the 'ordinary divorce procedure' to divorce in Scotland. Again, this is a more complex process and you will need the assistance of a solicitor .
To use the ordinary divorce procedure, your divorce must involve any of the following:
- The divorce is contested; or
- You have children under the age of 16; or
- You, as a couple, are seeking financial orders from the court; or
- The grounds for divorce are adultery or unreasonable behaviour ' see the 'Grounds for divorce in England and Wales' above.
More information
Find out more about arranging a DIY divorce in Scotland .
Find out more about the separation and divorce process in Lawpack's DIY Divorce Kit , which shows you how to make your own DIY divorce and save £££s in legal fees.
Alternatively, if you need legal help with the divorce process, then our fixed price Divorce Online Service can give you expert guidance at a low cost price - from just £68.
More separation and divorce information
Article: Do I really need a divorce solicitor for my divorce?
Article: 10 tips to avoid a messy divorce
Article: 10 things you must do after a divorce
Download: Separation Agreement
