Divorce Grounds

Separation and divorce.

Family law allows for judicial separation and, ultimately, divorce when a marriage has broken down. Judicial separation formalises the separation and addresses legal issues that result from permanent separation.

Divorce provides for the dissolution of marriage and the right to remarry, while also dealing with property, maintenance, the matrimonial home, guardianship, and the care of children. These aspects are handled separately. This section focuses on the grounds for and procedures associated with judicial separation and divorce.

The law encourages separation agreements in the context of judicial separation, and similar considerations apply to divorce. A court order is necessary to dissolve the marriage. In both judicial separation and divorce, court orders may be required to carry out certain aspects of the separation agreement.

The law on divorce is based on the Matrimonial Causes (Northern Ireland) Order 1978, as amended.

Divorce may be granted on the grounds that the marriage has irretrievably broken down. Irretrievable breakdown can be proven on one of several alternative bases. If one such basis is found, and the court determines that the breakdown is irretrievable, a decree of divorce may be granted.

Adultery post-marriage by the respondent is grounds for divorce. It must be proven with reasonable probability that the respondent voluntarily had intercourse with someone of the opposite sex during the marriage. A petitioner may not rely on their own adultery. A single act of intercourse may be sufficient.

If the petitioner is aware of adultery and continues to reside with the respondent for a period exceeding six months or connives in relation to the behaviour, then the petitioner may not be able to rely on the grounds for divorce. This issue also arises in the context of the requirement that the marriage has irretrievably broken down.

The second ground is that the respondent has behaved in such a way that the applicant cannot reasonably be expected to live with the respondent. The question is how a reasonable person would be expected to respond to the behaviour.

Unreasonable behaviour requires more than normal stress and challenge. It looks at the overall atmosphere and relationship. The culpability of the respondent is not necessary.

The fact of a breakdown of marriage due to communications and a situation that may be objectively difficult is not sufficient on its own. Wilful behaviour by the respondent is required.

The potential grounds that may constitute unreasonable behaviour are broad. Behaviour may include positive conduct or omission. Generally, ongoing behaviour is required rather than a one-off incident.

The key issue is the effect of the behaviour on the petitioner. The respondent need not necessarily be at fault, but often will be. The behaviour may be a result of mental illness or a condition that the respondent cannot help.

A petitioner will not succeed if, despite the unreasonable behaviour, the couple continued to reside together for periods exceeding six months after the last instance of such behaviour.

The third ground for divorce is that the respondent has deserted the petitioner for a continuous period of at least two years before the presentation of the petition. Desertion has a somewhat technical meaning. It requires that the spouses live apart permanently without the applicant’s consent.

Living apart generally requires that the parties have physically separated, but it is possible to live apart under the same roof in separate households. The intention of the stated relationship may be enough to constitute living apart. The respondent must have left voluntarily and without the other party’s consent. When the parties separate by agreement, there is no desertion.

The separation must not be due to the behaviour of the petitioner. If the respondent has left on account of the applicant’s behaviour, then it is the applicant who may be in desertion. In order for the applicant to be in desertion, the behaviour must be sufficiently serious to justify the desertion. In such cases, there would be so-called constructive desertion.

The fourth ground is that the parties have lived apart for a continuous period of at least three years preceding the petition, and the respondent consents. Living apart has the same meaning as above. This ground effectively allows parties who have been actually separated for two years to divorce by consent when the marriage has irretrievably broken down.

The final ground is that the parties of the marriage have lived apart for at least five years preceding the separation. In this case, five years of separation itself constitutes grounds for divorce irrespective of consent.

The respondent may resist divorce on the grounds that granting a divorce would cause grave financial and other hardship.

An application for divorce may not be made within the first two years of marriage, except under Article 5 as amended in 1989 for exceptional hardship.

Where adultery is committed with the connivance of the other party, a decree is not available.

Where divorce is obtained by fraud and collusion with no basis, the decree may be set aside or not granted.

A court may not grant a decree absolute if the applicant has not made or proposed adequate financial arrangements for the respondent or the children of the family.