a) That the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent (although for all practical purposes you do not really need to prove that you find it intolerable to live with the respondent). Note that adultery means the physical act of adultery – it is not sufficient to say that your spouse is having an affair or even that they are living with someone else. What this means in practice
is that the adultery will usually have to be admitted, unless a child has been born to the relationship. Accordingly, you will need to ensure that your spouse is prepared to admit the adultery for the purpose of the divorce (preferably in writing – see the example confession statement in Appendix 1), before issuing proceedings. If you issue divorce proceedings on the basis of adultery and are then unable to prove that adultery, you will not be able to proceed with the divorce. Note also that you cannot rely upon your spouse’s adultery if you and he or she live together for more than six months after you have found out about the adultery (unless the adultery is still continuing).
A common question is whether or not to name the other person involved in the adultery (the ‘co-respondent’). There is no obligation to name the co-respondent and my advice is not to do so unless you want to claim costs against them. If the co-respondent is named then they will become a party to the proceedings and they will therefore have to be served with the divorce petition. Often, they will not acknowledge receipt of the petition and the petitioner will then have to go to the trouble and expense of proving that the co-respondent has received it – see the section below on service of the papers. You should therefore think very carefully before naming the co-respondent.
b) That the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent (unreasonable behaviour).
Note:
1 A period or periods of living together after the last incident of unreasonable behaviour will be disregarded if the
length of that period or those periods was six months or less. In other words, if you are still living with your spouse the petition should be issued within six months of the last incident of unreasonable behaviour.
2 Unreasonable behaviour does not need to include violence – it can be any behaviour that you consider to have been unreasonable.
3 It is preferable not to mention children in allegations of unreasonable behaviour, if possible.
4 It is not sufficient to say that you and your spouse have ‘drifted apart’ or similar. There must be some element of fault on the part of your spouse.
5 Allegations of unreasonable behaviour should preferably be in concise numbered sub-paragraphs, including the first incident, the worst incident and the most recent incident. For more information, see the section on drafting the petition below and the example petition in Appendix 1.
c) That the respondent has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the divorce petition (two years’ desertion). You can safely ignore this one – desertion is extremely rare, and I have not come across a divorce petition based upon it in more than 20 years of doing divorce work.
d) That the parties have lived apart for a continuous period of at least two years immediately preceding the presentation of the divorce petition (two years’ separation) and the respondent consents to the divorce.
Note:
1 That ‘separation’ usually means living in two entirely separate households. It is possible to be living separately albeit under the same roof, but this means completely separate, including sleeping separately, cooking and washing separately, and having separate financial arrangements.
2 That any period not exceeding six months or periods not exceeding six months in total that you resume living with your spouse will not prevent a divorce on this basis, but that period or those periods will be added to the total. For example, if you separate and then live together for three months, you will not be able to divorce on this basis until at least two years and three months have elapsed since the original date of separation.
3 Obviously, you will need to check that your spouse will consent, before issuing divorce proceedings on this basis. If you issue the divorce and your spouse does not then consent, you will not be able to proceed.
e) That the parties have lived apart for a continuous period of at least five years immediately preceding the presentation of the divorce petition (five years’ separation) – without requiring the respondent’s consent. Note that the same principles regarding separation and resumption of cohabitation as under paragraph (d) (1) and (2) apply. Note, though, that if the divorce is on the basis of five years’ separation the respondent can oppose the divorce on the basis of ‘grave financial or other hardship’. It is therefore important that financial arrangements
are considered (or preferably agreed) before issuing a divorce petition on this basis.