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Grounds for divorce

This information only applies in England and Wales.

Before filing for divorce, you should first consider the grounds for divorce, as these will need to be specified as part of the divorce process. Currently, the five possible grounds for divorce are: adultery, unreasonable behaviour, desertion, living apart for more than two years (with agreement) and living apart for more than five years (without agreement). In practice, divorcing couples who both want to get divorced will often decide to choose the reason of 'unreasonable behaviour' as a catch-all ground.

The ground of adultery can be used where your spouse has had sexual intercourse with someone else of the opposite sex (so if your husband had sex with a man this does not count as adultery). It must be actual sexual intercourse - not just a kiss or 'heavy petting'.

If you decide to file for divorce on grounds of adultery, you must do so within 6 months of discovering that your spouse cheated on you. However, you cannot give adultery as a reason if you lived together as a couple for 6 months after you found out about it.

You can only use the ground of adultery if you are the 'innocent' party (ie your spouse slept with someone else - not if you committed adultery). However, if you both had sexual relationships with other people, either spouse can file for divorce.

There are essentially two distinct situations where the ground of unreasonable behaviour is given in a divorce petition. Firstly, where unreasonable behaviour has actually occurred. Secondly, where none of the other grounds for divorce apply (eg where spouses have simply drifted apart and no longer wish to remain married).

Although unreasonable behaviour can constitute serious accusations including domestic violence or drunkenness, it also encompasses rather vague issues such as lack of support in maintaining a household. In reality, there is a very low standard when it comes to unreasonable behaviour, but some factual reason must be given and an incident of 'unreasonable behaviour' must have occurred less than 6 months prior to filing for divorce.

It should be noted that, if your spouse has become intimate with someone else but has not had sexual relations with them, although adultery cannot be given as a ground for divorce, unreasonable behaviour can be used. Similarly, if your spouse has a sexual relationship with a member of the same sex, this does not count as adultery but can count as unreasonable behaviour.

If you and your spouse have lived apart for at least 2 years, and you both agree to get divorced, this ground can be used.

If you have not been living with your spouse for at least 5 years, you can file for divorce on this ground, even if your spouse does not agree to divorce.

If your spouse left you, without your agreement or a good reason and with the intention of ending the relationship, it may be possible to use the ground of desertion when filing for divorce. They must have deserted you for over 2 years within the last 2.5 years and you can have lived together for up to 6 months during this period. In practice, this is a rarely used ground.

For more information about divorce, read The divorce process.

The Divorce, Dissolution and Separation Act 2020 is expected to come into force on 6 April 2022 and will radically modernise the process of separation for couples in England and Wales.

Under the 2020 Act, the requirement to prove the ‘irretrievable breakdown’ of a marriage using the grounds listed above, is removed. Instead, the breakdown can be proved by a sole or joint statement signed by one or both partners. No further evidence is required to prove that the marriage has broken down. 

For more information, read No-fault divorce.

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