THE LAW ON DIVORCE

There is only one ground for Divorce – the irretrievable breakdown of a marriage. This ground is contained in the Matrimonial Causes Act (MCA) 1973.

The evidence for the irretrievable breakdown of a marriage comes from one of five facts:

• 1.Fact A: adultery.
• 2.Fact B: behaviour.
• 3.Fact C: desertion.
• 4.Fact D: two years’ separation with the consent of the respondent.
• 5.Fact E: five years’ separation.

If one of these facts is proved the presumption is that the marriage has irretrievably broken down.

Fact A: adultery

To prove this fact there has to have been an act of adultery and the petitioner must now find it intolerable to live with the respondent. Adultery is defined as voluntary sexual intercourse between a married person and a person of the opposite sex, whether married or not, who is not that married person’s spouse. From a practical point of view, the method of proof is a confession statement. A confession statement is now usually included on the acknowledgement of service.

Because the petitioner must also find it intolerable to live with the respondent, an act of adultery is only valid if the petition is filed within six months of the act being discovered.

Fact B: behaviour

There is no definition as to what constitutes unreasonable behaviour. The test for unreasonable behaviour is therefore subjective, that which a particular petitioner finds unreasonable.

Some examples of unreasonable behaviour include the following:

• violence;
• lack of communication;
• lack of socialising;
• neglect;
• bullying;
• constant criticism;
• financial irresponsibility;
• obsessive DIY;
• emotional dissatisfaction;
• sexual dissatisfaction;
• desertion;
• boredom and growing apart.

Fact C: desertion and constructive desertion

For this proof to hold there must be an actual separation and the respondent must have every intention to desert. Lack of consent to the separation by the petitioner and the separation is without just cause.

Facts D and E: separation

Fact D is two years’ separation with respondent’s consent. The parties must have lived apart continuously for a period of two years immediately preceding the presentation of the petition.

Fact E is five years’ separation. This ground includes provision for grave financial hardship.