What are the legal requirements for a Divorce to be granted?

Posted under News Updates on 15 February 2016
  • A Court will only grant an application for a Divorce if the following criteria are satisfied:
    • The applicant can prove that there has been an “irretrievable breakdown” of the marriage by showing at least one of the following facts:
      • Adultery: the applicant’s spouse must have committed adultery and the applicant finds it intolerable to live with the spouse.
        • The applicant must also have stopped living together with the spouse within 6 months after the adultery was discovered.
        • The applicant cannot rely on the adultery as a grounds for Divorce if the applicant continued to live with the spouse for more than 6 months after the adultery was discovered
        • Adultery is often difficult and expensive to prove. This is because the applicant must prove that the spouse had consensual sexual relations with the third party and a Private Investigator may need to be engaged to obtain supporting evidence of the adultery.
        • Alternatively, the applicant can prove that the spouse had an “improper association” with a third party (e.g. by showing that the relationship between the parties is so intimate that adultery may reasonably be assumed if there was an opportunity for it to occur).
      • Unreasonable behaviour: the applicant’s spouse must have behaved in such a way that the applicant cannot reasonably be expected to live with the spouse
        • Some examples include situations where the applicant’s spouse has acted in the following way:
          • The spouse has committed family violence by:
            • Placing a family member in fear of hurt
            • Causing hurt to a family member
            • Wrongfully confining or restraining a family member against their will
            • Causing continual harassment with intent to cause anguish to a family member, including verbal abuse, psychological or emotional abuse
          • The spouse has neglected the family (e.g. keeping late nights, not financially supporting the family, irresponsibly incurring debts that adversely affect the family)
          • The spouse has committed adultery with or has improper associations with a third party
          • The spouse has committed domestic violence
        • The applicant cannot rely on the spouse’s unreasonable behaviour as a grounds for Divorce if the applicant continued to live with the spouse for more than 6 months after the final incidence of unreasonable behaviour
      • Desertion: the applicant’s spouse deserted the applicant for a continuous period of at least 2 years before the Divorce
        • The applicant must not have agreed to the spouse’s desertion
        • The ordinary wear and tear (e.g. tension) of married life cannot be relied on as a sufficiently serious reason for the desertion
        • There can be “constructive desertion” when one party leaves the home due to the behaviour or mistreatment of the other party
      • 3 years’ separation with consent: the applicant and spouse must have lived apart for a continuous period of at least 3 years before the Divorce and the spouse must agree to the Divorce
        • Parties will be considered as having been separated if they have lived under the same roof but sleeping in separate bedrooms and keeping separate households (e.g. financially independent and separate expenses).
      • 4 years’ separation without consent: the applicant and spouse have lived apart for a continuous period of at least 4 years before the Divorce
        • The applicant’s spouse does not need to agree to the Divorce if the parties have been separated for at least 4 years

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