Can I start a divorce?
If you wish to start a divorce you must first be able to say that the marriage has irretrievably broken down. It is not sufficient to simply say that you have irreconcilable differences. You must then prove one of five facts:
- Adultery. Your spouse has had sexual intercourse with a member of the opposite sex. It is not sufficient to show that your spouse exchanged text messages or kissed a member of the opposite sex.
Adultery is not available if a person has sexual relations with someone of the same sex. In such circumstances, you could rely on the unreasonable behaviour of your spouse (see below) and could cite it as an improper association. It is not necessary to name the third party.
- Unreasonable behaviour. Your spouse has behaved in such a way that you cannot be reasonably expected to live with them. There is no definitive list of what constitutes unreasonable behaviour. It is usual to provide several allegations of unreasonable behaviour, with dates if possible.
- The parties have been separated for a period of at least two years and your spouse consents to a divorce. You will need to give a date of separation and confirm that you have not lived together since that date. Any periods of attempted reconciliation must not exceed a total of six months and these periods will not count towards the total of two years of separation.
- Desertion for at least two years. Your spouse has left you, without your consent or a justifiable reason, and there have been no periods of reconciliation.
- Five years apart. You have been separated from your spouse for a period of at least five years. You will need to give a date of separation. Any periods of reconciliation must not total more than six months and the periods will not count towards the five-year total. No consent from your spouse is required.
As divorce can be a complex process, you might find it useful to seek professional legal advice at the start and during the process so that you understand your rights and your entitlement and to ensure that any decisions made are legally binding.
We have specialist Family lawyers to advise on all aspects of relationship breakdown, including divorce, separation and the resolution of financial and children matters. We can help in many ways, including resolving your case using collaborative law.
For more information, please contact our Family team who would be happy to advise you.Back to index