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Grounds for divorce

The UK has three legal systems – England/Wales, Northern Ireland, and Scotland – and each jurisdiction is governed by different laws. The grounds for divorce in England/Wales and Northern Ireland are virtually identical, however, so for the purposes of this overview, we’ve lumped them together.

1. Grounds for divorce in England, Wales and Northern Ireland

To end a marriage in England, Wales and Northern Ireland, you must demonstrate that it has broken down irretrievably. You do this by fitting your circumstances into one of five ‘facts’, namely:

  • Adultery: This means your spouse has had full sexual intercourse with a person of the opposite sex. You must have proof of adultery or the respondent must admit to it. You cannot use this ground if the respondent has had a sexual relationship short of intercourse, or if they have had a sexual relationship with a person of the same sex. If this is the case, then you must rely on the ground of unreasonable behaviour (see below). If you go on living together for more than six months after you have found out about the adultery you may not be able to use this ‘fact’ because you also have to show the court that you find it ‘intolerable’ to go on living together.
  • Unreasonable behaviour: This means your spouse has behaved in such a way that you cannot reasonably be expected to live with him/her. It can include persistent violence, insults, coldness, disgusting personal hygiene, inadequate sex -- and more besides.
  • Desertion for a period of at least two years: This means that your partner has left you against your will, and you have been living apart for at least two years. As you can get a divorce if you have been living part for two years and you both agree this ‘fact’ is not used very often.
  • Two years separation with consent: Even if you both agree to divorce, one person still has to be the petitioner; you can't ask the court for a divorce together. During the period of separation you can have had up to six months trying to live together again. This doesn’t count towards the two years, however.
  • Five years separation without consent: If you can’t get your spouse to agree to a divorce and you don't fit into the other ‘facts’ you may have to wait until you have been apart for five years before you can petition for a divorce. Your partner may still be able to block it by trying to prove to the court that the divorce could cause gross financial or other hardship, but this rarely happens.

2. Grounds for divorce in Scotland

In Scotland, there are two grounds for divorce: irretrievable breakdown of marriage and transsexual gender recognition.

a. Irretrievable breakdown of marriage

The first ground can be proved in one of four ways:

  • Adultery: As above, this means your spouse has had full sexual intercourse with a person of the opposite sex. Note also that if you ‘condoned’ or ‘connived at’ your spouse’s adultery, you cannot rely on this reason. Condonation means you forgave your spouse by resuming married life after you knew about the adultery. Connivance means encouraging the adultery (e.g., suggesting you both attend a ‘swingers’ party).
  • Unreasonable behaviour: This means your spouse has behaved in such a way that you cannot reasonably be expected to live with him/her. It can include persistent violence, insults, coldness, disgusting personal hygiene, inadequate sex -- and more besides.
  • One year non-cohabitation where both spouses consent to divorce: Non-cohabitation means living separate lives and not living together as a normal married couple would.
  • Two years non-cohabitation where there is no mutual consent to the divorce: This means that one party does not want to get divorced.

b. Transsexual gender recognition

To satisfy the second ground, you must be a transsexual who has an interim gender recognition certificate. You can get an interim gender recognition certificate by applying to the Gender Recognition Panel.

** Legal information & advice **

You can obtain further information about divorce in our Solicitor blog.

Depending on your circumstances, however, you may want to speak with a solicitor who specialises in family law. You can find a family law solicitor in your area using our solicitor directory. Just use the form in the top right corner of this page.

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