Firstly, either spouse can apply for the divorce, but they need to establish that the marriage has irretrievably broken down (which is the only ground for a divorce in England and Wales) by demonstrating one of 5 facts. These are: adultery, unreasonable behaviour, 2 years separation with consent, 2 years desertion and 5 years separation.
Secondly, in order to rely on the ground of adultery, this must be with someone of the opposite sex. This is irrespective of whether the marriage is between same sex or opposite sex spouses. If the marriage is between same sex couple, and one spouse has committed adultery with someone of the same sex, the spouse wanting a divorce will need to rely on unreasonable behaviour rather than adultery.
Thirdly, irrespective of what ground is relied on, including unreasonable behaviour, it is possible to remain amicable throughout, subject to the other spouse’s reaction. We would normally advise you to consider 4 or 5 examples of mild examples of why you believe you are unable to remain marriage to your spouse, and to send this to them in advance, for them to consider before submitting your divorce petition. This reduces animosity from the beginning which is beneficial for both spouses and any children.
Fourthly, in order to rely on the ground for 2 years separation, you need the other spouse’s consent. They must return the replies to the divorce petition; and if they do not do so, the divorce will not be able to proceed. It is vital before considering to proceed on this fact, what your spouse is like with paperwork, are they notoriously bad at filing in forms, do they put things off until tomorrow, or could they refuse to sign the paperwork to be difficult? If you are at all concerned, you should contemplate using a different fact.
Lastly, divorce only deals with the marriage itself. It does not sever any financial claims or ties with the other spouse. If you are contemplating a divorce, you should take independent legal advice to discuss any financial claims either you or your spouse may have and to discuss financial settlement.
If you have any questions or would like to book an appointment, please get in touch with our Family Law team on 01255 320 555 or email email@example.com.