In the treacherous tides of relationship breakdown, many couples are quick to blame either themselves or the other for the failings of their relationship. Amidst the sea of hurt or anger, it can be tricky to decipher exactly who has the right to divorce who, and on what grounds the divorce can be based. Aside from pointed fingers and blaming tongues, what really matters is whether you are entitled to a divorce in the eyes of the Court.
Technically, there is only one ground for divorce, which is ‘irretrievable breakdown’ however, one of the following additional grounds must be proved:
- Adultery: The Court accepts that ‘having your cake and eating it too’ is a valid ground for divorce. However, you cannot rely on this reason if you are the one who cheated, nor if you’ve known about the other partner was doing so for six months yet continued to live with them (otherwise known as condemnation of the adultery).
- Living apart for more than two years: You can divorce on this ground if both parties consent that the relationship is over and divorce is the appropriate next step.
- Living apart for more than five years: If you’ve lived separately for five years, you can divorce on this ground without needing your spouse’s consent.
- Desertion: If your spouse leaves without your consent or any justifiable reason, has left for longer than two years in the past 2 ½ years, or has left with the aim of ending the relationship, this is a ground.
- Unreasonable Behaviour: This ground is the most encompassing and most commonly used. This ground is based on your spouse’s behaviour. Broadly the test is whether a reasonable person would see the other’s behaviour as unsatisfactory for an affectionate marriage. Reasons can include physical or mental violence, substance abuse or not contributing affectionately to the relationship.
Occasionally, people want to rely on the basis of their own behaviour when filing for divorce. However, the Petitioner cannot rely on their own behaviour.