Adultery – No Longer the Primary Ground for Divorce

A marriage can end with a divorce provided that the couple has been married at least a year and the marriage has irretrievably broken down.

The petitioner must prove the 'irretrievable breakdown' of the marriage by evidence of one or more of the five statutory grounds for divorce. These are adultery, unreasonable behaviour, desertion, two years' separation with consent and five years' separation without consent.

Although in the past adultery has been the most prevalent ground cited in divorce cases, this is now changing with unreasonable behaviour taking over as the primary ground.

Understanding Adultery, Unreasonable Behaviour and the other Grounds for Divorce

A spouse has committed adultery if they were involved in voluntary sexual intercourse with a person of the opposite sex and the other spouse can no longer bear to live with them. In case of homosexuality, however, the petitioner can only file for a divorce on the grounds of unreasonable behaviour. Other forms of sexual conduct also do not generally constitute adultery, whatever the aggrieved spouse feels about them.

Given the specific requirements of adultery, unreasonable behaviour is often better cited as the basis for a divorce petition. More specifically, the husband or wife has behaved in such a way that the other finds it intolerable to continue to live with him or her. Examples of unreasonable behaviour may include physical violence, verbal abuse, excessive drinking, gambling, financial extravagance and a number of other allegations.

In case of desertion, the spouse has left the other without his/her agreement for a continuous period of two years. If the couple has been living separately for two years, then this fact can be a ground for divorce on condition that both agree to it in writing. Otherwise, living apart for five years is enough to get a divorce without the other spouse's consent.

Why are Adultery and Unreasonable Behaviour so Commonly Cited?

Adultery and unreasonable Behaviour are more likely to be cited in divorce petitions since they do not have prolonged time requirements such as the minimum two year separation requirement which must be met.

According to recent studies, claims for unreasonable behaviour have significantly increased over the last few years whereas adultery has been dramatically gone down as a reason for divorce. This is explained by a number of reasons.

Firstly, in case of adultery, the respondent must be the one who committed the adultery and admit it and not the petitioner. Secondly, the petitioner needs to prove the adultery which can be difficult if the other party does not admit it. In addition, there is a time limit - the spouse must apply for a divorce within six months of finding out about the adultery. Otherwise, they cannot claim it as a cause for the divorce and must cite unreasonable behaviour instead.

Unreasonable behaviour is therefore the 'substitute' ground for adultery if adultery cannot be proved by the petitioner or if the time limit of six months has elapsed. Unreasonable behaviour can be defined widely and include a number of allegations which are never truly exhausted. It is thus considered easier to prove than adultery. It can take little time and thus the couple can get the divorce very quickly.

For more information, please contact Jeetesh Patel via e- mail JPatel@rollingsons.co.uk or by telephone on 0207 611 4848.