| Who can divorce? In order to obtain a Divorce in England or Wales, you and your spouse must: - have been married for at least one year; - and have grounds for divorce. - meet the residence rules; and - have a marriage recognised as valid by UK law. Petition For Divorce Petitioning for divorce is the first step in the process to dissolve the marriage. One spouse petitions (and becomes the petitioner), while the other spouse becomes the Respondent. The main decisions at this point are to decide: 1) Where to petition (i.e. in which jurisdiction, England and Wales? and which local county court).
This is a fairly straightforward decision for most, but for people who are from different countries and were married or have recently lived abroad it may not be so clear cut. In very general terms the English courts have jurisdiction to grant a divorce if either spouse: (a) is domiciled in England or Wales when the proceedings are begun, or (b) is habitually resident in England or Wales throughout the period of one year ending with the date on which proceedings are begun. The most obvious category of people who have an English domicile (and who are thus able to obtain a divorce in England) are those who are working for the time being overseas and this can apply to either or both partners. Notice that only one or other spouse needs to be "domiciled" here (or habitually resident ) in order for either to be able to lodge a divorce petition in the English courts. The other spouse can be of any nationality, habitually resident anywhere or domiciled anywhere. One can live overseas for a very long time without necessarily losing one's English domicile. This is because one can live overseas with the express intention of returning to England at some time in the future. If that is the case one's English domicile is not lost because one happens to be overseas. In fact, intention plays a very important role in deciding where one has one's domicile and it is quite difficult to prove a person's intention one way or the other. In practice, if one is British it is quite easy to petition for divorce here although one happens to be living overseas. And it is not usually necessary to return to the UK in order to be able to do so. 2) What grounds to petition under (i.e. what reasons to give for the marriage break-up). The only ground for divorce is that the marriage has irretrievably broken down. There are five ways, known as the five facts, of demonstrating that the marriage has irretrievably broken down. One of the following has to be proved:- 1. Adultery Adultery is voluntary sexual intercourse between a married person and someone of the opposite sex other than the spouse. It must be shown that adultery has been committed and that you, the Petitioner, finds it intolerable to live with your spouse for whatever reason. The adultery ground cannot be used if you continue to live with your spouse, as wife and husband, for more than six months after the last occasion on which you learned that adultery had occurred. There is no need to name the person with whom the respondent has committed adultery, although you may want to do so if you wish to claim costs against them. However, you should state dates and places where the adultery took place, if details are known. 2. Unreasonable behaviour Unreasonable behaviour is behaviour by the respondent which means that the petitioner cannot reasonably be expected to live with her / him any longer. There is no legal definition of unreasonable behaviour but it includes such behaviour as physical and mental cruelty to you or your children, verbal abuse, financial irresponsibility, drunkenness or transmission of certain sexually transmitted diseases. Usually, there will have to have been a number of incidents. Each incident in itself does not have to be serious. A long period of trivial incidents may well be considered sufficient to justify a divorce. One very serious incident may also be sufficient, for example, if the respondent has sexually abused a child. You should provide a detailed account of the behaviour which you consider has led to the breakdown of the marriage. It is helpful to include approximate dates and places of incidents. This enables the respondent to understand what is alleged and helps the district judge decide whether the behaviour was unreasonable. If you have continued to live together for six months after the last incident of unreasonable behaviour, this may be used to indicate that you can be expected to continue living together. It may result in the divorce not being granted. 3. Desertion Desertion must be for a two year period against your wishes without justifiable cause. This particular reason is seldom used these days. 4. Two years separation and both parties consent to a divorce Separation usually means that you have not been living in the same household, although it is possible that you may have remained in the same home but you must be able to demonstrate that you have not shared meals, slept together or provided services for each other, such as washing, cooking or cleaning. If you have lived together since the separation for periods of less than six months this will not prevent a divorce on these grounds, but the period of living together will not count as part of the two years or five years. 5. Five years separation when only one of the parties consents If one of the parties wishes to divorce and the other party does not, the Petitioner can start proceedings without the Respondent consenting after five years of living apart. | 
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