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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 husband or wife 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 six 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 (i.e. your husband or wife slept with someone else - not if you committed adultery). However, if you both had sexual relationships with other people, either husband or wife 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 - and secondly where none of the other grounds for divorce apply (e.g. where husband and wife 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 six months prior to filing for divorce.

It should be noted that, if your husband or wife 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 two years, and you both agree to get divorced, this ground can be used.

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

If your husband or wife 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 two years within the last two and a half years and you can have lived together for up to six months during this period. In practice, this is a rarely used ground.

For more information about divorce read The divorce process.