In this family law advice hub article, we take a look at which acts are deemed unreasonable behaviour and what counts as adultery, separation and desertion.
What is unreasonable behaviour?
You have to prove that your husband or wife has behaved in such a way that you can no longer live with them. This could include:
- Domestic abuse, violence or coercive control
- Excessive/lack of sex
- Unreasonable sexual demands
- Inappropriate association/relationship with another person not amounting to sexual intercourse.
- Debt/financial recklessness
- Verbal abuse, emotional abuse, mental abuse and bullying
- Social isolation
- Excessive/lack of socialising
- Drunkenness or drug taking
To prove unreasonable behaviour, you will have to prepare a short statement telling the court why your spouse’s behaviour is unreasonable, listing some examples. Not surprisingly because it involves blaming your spouse, this can sometimes cause arguments, conflict and more difficulties, getting in the way of sorting out other issues like the children or property or delays the divorce being granted. As long as you have adequate less severe examples it’s best to leave out something you know will prompt a bad reaction. Getting the divorce is more important than causing endless problems if there’s nothing to be achieved by raising it. The best way is to agree on a statement with your spouse so that you don’t start a dispute. Of course if the issue is something like sexual abuse of your child, which could have long term impacts on child arrangements, you really need to get legal advice.
What is adultery?
Adultery is if your husband or wife has had sexual intercourse with someone else of the opposite sex (the law recognises the act of adultery as sexual intercourse between a man and a woman) and that you find it intolerable to live with them. It has to be sexual intercourse (penetrative sex) and not any other sexual activity.
You can’t use this as a reason if you went on living together as a couple for 6 months after you found out about the adultery. The 6 month period constitutes acceptance but if it happens again there’s another 6 month period which starts running.
You can name the person your husband or wife had sex with in the court petition as what’s called a co-respondent, but it’s not a good idea. Naming a co-respondent can make your relationship with your spouse worse, which can also lead to problems agreeing other aspects of a divorce, like the children or property and financial arrangements. So be cautious about this, however much you want to get revenge. It can also lead to delays because the co-respondent also has to sign the papers admitting the adultery and they may not want to cooperate.
Note that you cannot petition for divorce on the grounds of your own adultery. Your spouse has to divorce you on these grounds. If you want to start divorce proceedings you will need to use another reason, the most common of which is unreasonable behaviour.
What is desertion?
One of you has to desert the other for a continuous period of more than two years.
This is rarely used as a reason for divorce and is difficult to prove because it requires you to show an intention to divorce throughout the 2 year period.
To prove desertion you need to show that your husband or wife has left you:
- Without your agreement;
- Without a good reason;
- To end your relationship;
- For more than 2 years in the past 2 years 6 months. You can still claim desertion if you have lived together for up to a total of 6 months in the course of the 2 year separation. The dates are extremely important and so hopefully you’ve kept clear records of the periods apart and together.
What is separation?
If you have lived separately for 2 years immediately before the divorce petition is issued and you both have to agree, you can divorce. There must be a continuous period of 2 years where you have lived separately.
If you’ve lived apart for at least 5 years, you can apply for a divorce even if there is no agreement.
You can be separated but living in the same home, but this assumes you’re not together as a couple. For this you will need to demonstrate that you have been living completely separate lives, for instance cooking separately, eating separately and sleeping separately.
The court will also look for signs of an intention to separate for the purpose of getting a divorce. You must show that you do not intend to live together again and that you view the marriage as at an end at the beginning of the 2 year period. If there is another reason you have lived apart e.g. for work, this would not prove the necessary intention.
During the 2 year period, there may be times where you attempt to live together again. As long as these periods do not total more than 6 months, this does not affect your ability to petition based on this ground.
The respondent to the divorce petition must consent to the divorce once the petition has been issued. They have to confirm their consent in writing.
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