What are the Grounds for Divorce in the UK?
If you're considering ending your marriage, understanding what are the grounds for divorce is essential. The divorce process in England and Wales has changed dramatically in recent years, and these reforms have made separating far less adversarial than it once was.
The landmark shift came in April 2022 when no-fault divorce was introduced. This means couples no longer have to prove wrongdoing or point fingers at each other. Instead, you simply need to state that your marriage has irretrievably broken down. This transformation has simplified the entire process, minimising conflict and allowing couples to move forward with less animosity and stress.
If you're uncertain about how these changes impact your circumstances or what you need to do next, this comprehensive guide will walk you through everything you need to know about the grounds for divorce in England and Wales, and the steps involved.
How Divorce Grounds Have Changed
The move to a single legal ground for divorce, that the marriage has irretrievably broken down, has significantly streamlined the process. Rather than examining the reasons behind the breakdown, the court now accepts a formal statement from one or both spouses as sufficient, without requiring supporting evidence.
This approach avoids delving into personal issues and helps reduce tension during what can already be a stressful time.
A further development is the option to submit a joint application, allowing both spouses to confirm the breakdown together. While not essential, this can help foster cooperation, particularly where decisions around children or finances need to be agreed.
How No-Fault Divorce Works
The no-fault divorce process is designed to be straightforward while still providing time for reflection and practical arrangements. Here's how it works:
Step 1: Application
Either spouse, or both together in a joint application, can submit the divorce petition stating that the marriage has irretrievably broken down. This is now a simple tick-box exercise rather than requiring lengthy written explanations. You must have been married for at least 12 months before applying.
Step 2: Notification
The person who files the application (the applicant) has 28 days to serve the divorce papers to their spouse. The default method is via email, though other options are available if needed.
Step 3: Reflection Period
After the application is submitted, there's a mandatory 20-week reflection period. This cooling-off time allows both parties to consider whether divorce is definitely the right path and to begin discussing practical matters such as finances and child arrangements. The court cannot proceed until this period has elapsed.
Step 4: Conditional Order
Once the 20-week reflection period ends and you confirm you wish to continue, the court grants a conditional order (previously called decree nisi). This is the first formal step in legally ending the marriage.
Step 5: Final Order
After a further six-week period following the conditional order, you can apply for the final order (previously decree absolute). Once granted, your marriage is legally dissolved and you're free to remarry if you wish.
The entire process typically takes at least six months from start to finish due to the built-in waiting periods.
The Old System: Five Facts for Divorce
To understand just how significant the current changes are, it's helpful to look at what the common legal grounds for divorce in the UK used to be. Under the previous system, you had to prove one of five specific facts:
1. Adultery
Adultery was one of the most cited grounds for divorce. To use this fact, you needed to demonstrate that your spouse had engaged in a sexual relationship with someone of the opposite sex, and that you found it intolerable to continue living with them as a result.
However, there were strict limitations. If you continued living together for more than six months after discovering the adultery, you could no longer use this ground. This created complications for many couples trying to navigate their options.
2. Unreasonable Behaviour
Unreasonable behaviour became the most popular route to divorce under the old system due to its flexibility. You had to show that your spouse behaved in ways that made it unreasonable for you to continue the marriage.
This could include a wide range of circumstances, from serious issues like abuse and addiction to less severe matters such as lack of emotional support or differing priorities. The breadth of what could constitute unreasonable behaviour made it a practical choice for many, though it still required listing specific examples of conduct, which could feel accusatory.
3. Desertion
Desertion required proving that your spouse had left you without consent or good reason for a continuous period of at least two years. This ground was less commonly used because it demanded clear evidence of unjustified abandonment and an uninterrupted period of desertion, which could be difficult to establish.
4. Two Years' Separation with Consent
If you and your spouse had lived apart for at least two years and both agreed to divorce, you could use this ground. It offered an amicable route for couples who had drifted apart, but it required patience as you had to wait the full two years before applying.
5. Five Years' Separation without Consent
For those whose spouse refused to agree to a divorce, five years' separation provided an alternative. You needed to demonstrate that you had lived separately for at least five years, and unlike the two-year option, your spouse's consent wasn't necessary. However, this meant potentially waiting half a decade before you could legally end your marriage.
Divorcing in Scotland: A Different System
It's important to note that the information in this guide applies specifically to England and Wales. If you live in Scotland, the divorce process operates under separate legislation with its own set of rules and grounds.
In Scotland, divorce is governed by the Divorce (Scotland) Act 1976 and has not adopted the same no-fault system as England and Wales. Scottish couples still need to use one of the established grounds for divorce:
Grounds for Divorce in Scotland:
Adultery: Similar to the old English system, you can divorce if your spouse has committed adultery and you find it intolerable to live with them.
Unreasonable Behaviour: You can divorce if your spouse has behaved in such a way that you cannot reasonably be expected to continue living with them.
One Year's Separation with Consent: If you've lived apart for at least one year and both spouses agree to the divorce, you can proceed on this ground.
Two Years' Separation without Consent: If you've been separated for at least two years, you can divorce even if your spouse doesn't consent.
Interim Gender Recognition Certificate: If your spouse has been issued an interim gender recognition certificate, this can be a ground for divorce.
The Scottish system requires shorter separation periods than the old English system (one year instead of two with consent), but it has not moved to the simplified no-fault approach. You still need to establish one of these specific grounds when applying.
If you're in Scotland and considering divorce, you should seek advice specific to Scottish family law, as the procedures, timescales, and court system differ from those in England and Wales.
Expert Divorce Support from RJS Family Law
If you’re considering divorce or need guidance on your next steps, our experienced family law team is here to help. We offer clear, compassionate advice tailored to your situation and can support you through every stage of the process. Contact us to discuss your options confidentially.
FAQs
Can I mention adultery in my divorce application?
While adultery can certainly contribute to the breakdown of your marriage, you don't cite it directly on the application form under the new system. The only ground you state is irretrievable breakdown. If infidelity has caused your marriage to fail, that's sufficient reason to apply, but you won't name the other person or provide details of the affair in your divorce petition.
Do I need to be separated before applying?
No, there's no requirement to be physically separated before filing for divorce. You must have been married for at least 12 months, but you can still be living in the same home when you submit your application. The old rules requiring two or five years of separation no longer apply.
Is lack of intimacy grounds for divorce?
Any issue that leads to the irretrievable breakdown of your marriage can prompt you to file for divorce, including lack of physical or emotional intimacy. Since you don't need to explain your reasons in detail, you simply state that the marriage has broken down and proceed with the application.
Will the reasons for my divorce affect the financial settlement?
Generally, the grounds for divorce don't impact how assets are divided. Even if your spouse's behaviour contributed to the marriage ending, this typically won't affect the financial settlement unless there's been extremely serious misconduct.
Personal misconduct rarely influences financial arrangements. Only in exceptional cases, such as domestic violence resulting in serious harm, might the court consider behaviour when dividing assets.
Financial misconduct, such as deliberately wasting marital assets through gambling or hiding money, is more likely to be taken into account. If proven, the court may adjust the settlement to compensate the innocent party, but these cases are relatively rare.
Is divorce automatic after a certain period of separation?
No, there's no such thing as automatic divorce in the UK, regardless of how long you've been separated. Even if you've lived apart for many years or decades, you remain legally married until you go through the formal divorce process. This is a common misconception that likely stems from the old rules about separation periods.