In Northern Ireland divorce law, there is one main “ground” for divorce.
It is as follows:
The purpose of your divorce application is to prove to the court that the above statement is true.
If the court is satisfied* that this is true – i.e. your marriage is over and you aren’t getting back together – it can grant you a divorce.
*The standard of proof required is on the balance of probabilities.
You can prove this main ground of divorce by choosing from 5 different “facts” (confusingly, these facts are also sometimes referred to as “grounds” too).
You can use more than one fact on your divorce petition (but you should always have one strong one that you can rely on at the court hearing).
Here’s a list of them:
(The facts for dissolution of a civil partnership are the same as above, with the exception of adultery.)
The first three facts are what are known as “fault-based” (i.e. adultery, unreasonable behaviour and desertion).
The last two facts are what are known as “no-fault based” (i.e. two year’s separation with consent, and 5 year’s separation without consent) are .
A “fault-based” fact means that someone is to “blame” for the behaviour that led to the divorce – i.e. it’s someone’s fault.
For example, if a partner was having an affair, and that led to the breakdown of the marriage, that would mean that they were at fault. So adultery is a “fault-based” fact.
A “non fault-based” fact means that nobody is to blame.
Sometimes people just grow apart and marriages can break down with neither partner necessarily being "at fault".
For example, if a couple are experiencing difficulties in their marriage and decide to start living apart, that’s not necessarily anyone’s fault. So living apart for two years (with consent) is a a “non-fault based” fact.
We’ll look at each fact in more detail below but before we do, a quick warning:
When you are making your divorce application (and drafting your divorce petition) it’s important to pick the correct facts that suit your individual circumstances best.
Some facts are harder than others to prove, some facts take longer than others to prove, some have costs implications (important if you want your partner to pay the costs of the divorce).
You can find a more detailed discussion of which divorce ground to use below.
If you are unsure about which facts to use, you should contact an experienced Northern Ireland divorce solicitor for advice.
With that said, let’s look at each fact in turn:
1. Adultery (Fault Based)
You can use the ground of Adultery if your husband or wife has had a sexual relationship with someone of the opposite sex, and because of that, your relationship has broken down.
Adultery can be a straightforward ground to use if your partner admits that they had a sexual relationship with someone else.
It becomes more problematic if they deny it, because you will have to show evidence to prove that the relationship actually occurred (which might be difficult to come by).
It’s also important to note that the adultery has to result in you not being able to live with your partner. If you continue to live with your partner for a significant period of time after the act of adultery, you may not be able to use it as a ground in your divorce application.
The time limit is 6 months (Art 4.1) – so if you are still living with your spouse 6 months after the adultery took place, you may have to rely on another ground in your divorce application.
Common factors that are used to prove adultery are a simple admission by your spouse, cohabiting with a new partner, birth of a child, etc.
If you know the names of the people that your partner has committed adultery with, they should be named on the divorce petition.
2. Unreasonable Behaviour (Fault Based)
The ground of Unreasonable Behaviour can be used to cover a wide range of topics, but the overall principle is that the person’s poor behaviour means that you cannot be expected to live with them.
Of the three “fault-based” grounds, unreasonable behaviour is the most popular among people getting divorced.
Common examples of Unreasonable Behaviour include:
If you want to use the Unreasonable Behaviour fact, bear in mind that it is acceptable to live with the spouse for up to 6 months after the last instance of the unreasonable behaviour that prompted you to apply to divorce (the straw that broke the camel’s back, perhaps you could say).
But if you continue to live with them for longer than that, you run the risk of appearing to condone the behaviour (and the longer you live with them, the harder unreasonable behaviour is to prove (Article 4(3)).
Continuing to live together for more than 6 months after is not fatal to getting your divorce, but the court will take it into account.
3. Desertion (Fault Based)
The divorce ground of Desertion occurs when your spouse has left you, without giving a reason or prior agreement, for a period of over 2 years.
Desertion is the fact for divorce that is used the least in Northern Ireland.
It is a fault-based ground, so the court must be satisfied that your spouse intended to desert you.
This can be very difficult to prove, and for this reason, Desertion as a ground for divorce is rarely used.
4. Living Apart for Two Years (With Consent)
The Living Apart For Two Years ground is self-explanatory – you and your partner haven’t lived together for more than two years, and you both are in agreement that the marriage should be legally ended.
Living Apart for Two Years (with Consent) is the most popular ground for divorce used by couples in Northern Ireland.
This is a non-fault based ground for divorce, meaning that the divorce isn’t “blamed” on either partner.
Rather than pointing the finger, this fact is more an acceptance that the marriage is not working and has simply come to an end.
So if you and your partner have lived apart for more than two years, and both of you agree to the divorce, the court will usually accept this as proof that the marriage has irretrievably broken down.
Bear in mind that you can have lived together during the two year period, but it can’t be for more than six months in total.
There are situations where you may be living in the same house as your ex-partner, but sleeping in separate rooms, not spending time with each other, etc. This would not necessarily invalidate the two year rule, providing that you were, in essence, living separate lives.
Most couples, who rely on this ground in their divorce, share the cost of the divorce between them.
5. Living Apart for Five Years (without Consent)
If you and your partner haven’t lived together for more than 5 years, you can use this as a ground for your divorce. You don’t need your partner’s agreement.
Living apart for 5 years is the second most-used ground for divorce in Northern Ireland.
This is a non-fault based divorce, it doesn’t require consent, and it is more difficult for your partner to dispute or object to your divorce application.
The downside of course is that 5 years is a long time to wait, so it is not an attractive ground for people who want to move on from the relationship more quickly (and perhaps want to remarry).