The Ground for Divorce

The only ground on which a petition for divorce may be presented to the Court by either party to the marriage is that the marriage has broken down irretrievably.

However the Court cannot hold the marriage has broken down unless the petitioner satisfies the Court of one or more of the following five facts:

• Adultery and intolerability
• Behaviour
• Desertion
• Two years separation and consent
• Five years separation

The respondent has committed adultery and the petitioner finds it intolerable to live with the respondent.

Adultery

Adultery is voluntary sexual intercourse between two persons of the opposite sex, one or both of whom is married but not to each other.

Adultery may be proved or inferred from the following:

• Birth of a child to the wife on proof that the husband was not the father.
• Circumstantial evidence e.g. an enquiry agent's report which shows that the respondent and a member of the opposite sex are cohabiting.
• Conviction of the respondent in a criminal court of an offence entailing adultery for example rape.
• A finding of adultery against the respondent in an earlier case in the High Court or County Court.
• A confession of adultery by the respondent.

Intolerability

Intolerability must be proved as well as the adultery but this element rarely causes any problem. The petitioner has merely to convince the Court that he/she finds it intolerable to live with the respondent.

The respondent has behaved in such a way the petitioner cannot reasonably expect to live with the respondent.

The Court must make a valued judgement about the respondent's behaviour and its effect on the petitioner.

The Court must have regard to the history of the marriage as well as to the personalities of the individual spouses.

There is no need to prove that the respondent had any intention to inflict misery on the petitioner.

Relevant matters to behaviour include:

• Physical violence
• Verbal abuse
• Demanding sexual intercourse too often or not agreeing to intercourse at all
• Intimate relationships with people of the same or opposite sex
• Cruelty
• Failure to provide money or food
• Failure to provide affection or attention

The respondent has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petition.

The elements needed to constitute the fact of desertion are as follows:

• There must be a separation
• There must be an intention to desert
• he petitioner must not consent or agree to the separation
• The respondent must not have a just cause for leaving
• The desertion must be continuous

Desertion is rarely cited because it is so technical and because other facts can usually be cited where the parties are living separately.

The parties to the marriage have lived apart for a continuous period of at least two years immediately preceding a presentation of the petition and the respondent consents to a decree being granted.

A physical separation does not of itself constitute living apart. There must also be a mental element i.e. one of the spouses must regard the marriage as a mere shell, never intending to live with the other spouse again.

The respondent must consent to the divorce.

The parties to the marriage have lived apart for a continuous period of at least 5 years immediately proceedings the petition.

After five years separation there is no need for the petitioner to obtain the respondent's consent to the divorce and either party can petition.

It is a defence to proceedings for divorce where the only fact found is five years separation, that the dissolution of the marriage would result in grave financial or other hardship to the respondent and in all circumstances it would be wrong to dissolve the marriage.

The grave hardship most commonly pleaded is financial. In practice grave hardship is usually used by the respondent to persuade the petitioner to make satisfactory financial provisions.