The divorce starts when a divorce petition is issued. The spouse who issues the petition is known as the petitioner. The spouse who receives the petition is known as the respondent. To petition for divorce, you will need to show that the marriage has irretrievably broken down. There are several ‘facts’ a petitioner can use to demonstrate this. These can effectively be split into ‘non-adversarial’ and ‘adversarial’ facts.
To petition on a non-adversarial basis a spouse must show that they have been separated from their partner for at least two years immediately before the petition is presented to the Court. This ground requires the consent of the other spouse. If, however, the respondent refuses to give consent, the petitioner is left with the choice of either proceeding with the divorce on an adversarial basis or waiting for a 5 year period. The second non-adversarial fact that can demonstrate that the marriage has broken down irretrievably is that the petitioner has been separated from their partner for at least 5 years immediately before the petition is presented. This does not require the spouse’s consent.
To petition on an adversarial basis, the petitioner must provide evidence either that their spouse has committed adultery and that the petitioner finds it intolerable to continue living with them or that the marriage has irretrievably broken down due to the unreasonable behaviour of the respondent.
To petition on adultery, either the petitioner must provide evidence that their spouse has committed adultery or their spouse has to admit it. A petitioner cannot rely on their own adultery.
To petition on the ground of unreasonable behaviour, the petitioner must show that the marriage has irretrievably broken down due to the actions of the respondent. Unreasonable behaviour is widely defined and can include a breakdown of communications, lack of marital relations, no longer living together and causing illness and general upset. As a general rule, the petitioner must provide between 1 and 6 examples of the respondent’s unreasonable behaviour. These would generally include the first, worst and last examples, although each case turns on its own particular facts.
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