Divorce and The 5 Facts – which should you choose?


date published

14th June 2016

written by

Emma Heptonstall

Emmaheptonstall.com Image

date published

14th June 2016

Divorce and the 5 Facts

Divorce and the 5 Facts. Any idea what I’m talking about? Well if you’re considering divorce in England and Wales, you should. You may be more familiar with the concepts of the ‘grounds for divorce‘ right? Yes? You’re thinking adultery, unreasonable behaviour etc? Yes? Well actually, no! You see there is only 1 ground for divorce is England and Wales. This is that your marriage has broken down irretrievably.

So what about these ‘grounds’ that you’ve heard of then? These grounds are actually known as “the five facts” and are used to prove that’s your marriage has indeed broken down irretrievably. So how do you decide which of the five facts to use and does it really matter? 

Which of the five facts you use Will depend on your circumstances and how you feel. Some of the facts can only be used if in the time frame allows, for example, you and your husband have been separated for two years and both of you agree to divorce. It could be that you and your husband have been separated for five years; then his consent is not needed.

But what if you do not want to wait 2 or five years? If you do not feel able to wait, you are left with ending your marriage either on the grounds of adultery or unreasonable behaviour. Currently under English law if you wish to get divorced before the two year period has expired one of you the respondent must be at fault. It is hoped that this will soon change but as yet the law remains.


If you are to be the petitioner (the person applying for the divorce), this must be your husbands adultery with a member of the opposite sex. You cannot apply for divorce on the grounds of your own adultery, nor if your husband is having an affair with another man. The adultery must have occurred within six months of you finding out. If more than six months have elapsed after you’ve found out about the adultery, you cannot rely on this ground. His adultery may occur after you have physically separated (whether or not you still live together in the family home).

Unreasonable Behaviour

Unreasonable behaviour – this must be your husband’s unreasonable behaviour. If you want to rely on your own unreasonable behaviour, your husband will have to divorce you. There is no definition of unreasonable behaviour, but you must show that it is intolerable for you continue to live with your husband. Some examples  include name-calling, financial abuse, excessive drinking, withholding sexual intercourse and bullying. You do not need to find extreme examples (even if they exist), and often using these will complicate matters, so avoid using examples which may inflame the situation, if possible. There is a balance to be had between proving sufficient evidence to justify the fact being made out and aggravating matters.

Two Years Separation with Consent

You may apply for divorce on the grounds that you and your husband have been separated for at least two years preceding the application, and both of you agree to the divorce. You may be separated whilst living in same house. This is common. You are considered to be separated if you no longer share a bedroom, are no longer sexually intimate with each other, and you’re no longer cooking and cleaning or behaving in any way that would indicate you are still in a relationship. If it is at all possible, this can often be the easiest way to divorce, as you don’t need to point the finger of blame. However, it’s often the case that your financial situation won’t allow for the two of you to separate without resolving matters with a Financial Order because you need access to funds that are tied up in the marital home for example.  Further, you obviously cannot remarry until you are divorced, which may be a reason to move your divorce on. 

Five Years Separation

Perhaps you and your husband have been separated for 5 years or longer. It might be that you’ve just never got round to getting a divorce, it didn’t feel right or he didn’t want to. If you and your husband have been separated for five years preceding application, you do not need his consent to the divorce. It’s wise however, if you can, to discuss this with him and seek his opinion so that you are aware of what may happen next. 


Desertion is a ground rarely relied on today. You must prove that desertion occurred two years prior to the application for divorce and that your husband intended to desert you. You might consider using this ground if your husband cannot be found but you don’t believe him to be dead. If you and your husband accept the marriage is over, there are easier ways to ask for a divorce. 

Which of the 5 Facts Should I choose?

It really depends. If you (for whatever reason) feel that you do not want to wait two or even five years, and you want an immediate divorce, the only options available to you are adultery or unreasonable behaviour. Remember that if you have known about your husbands adultery for more than six months you will be precluded from using this ground. Both men and women often get very upset when being divorced on the grounds of Adultery because of the stigma and shame that still exists in society. It’s important to remember that the court does not sit in judgement on anyone in respect of the 5 Facts.  Whichever of the 5 Facts you choose to rely on, it will not have any bearing on your financial settlement. It may be tempting when divorcing on the grounds of adultery, to name your husband’s lover as a co-respondent to the divorce. You will be asked on the form if you wish to do this. Think twice. Pride, anger and frustration may lead you to do this, but naming a co-respondent may delay your divorce and it’s likely to inflame the situation. This will increase your costs. It is not legally necessary to name them and it will have no bearing very financial settlement or order that’s made by the court.

Can we agree the 5 Facts?

Oh yes,absolutely! and if you can do this, it will make the whole process significantly easier for you both. You can decide who will divorce who, which of the 5 Facts you wish to rely on and the details to be included in the petition. That way, when whomever is the respondent to the petition receives it, there will be no surprises. They can sign the Acknowledgement of Service stating that they consent to the divorce. This will save you both time and money. 

I’m Emma The Divorce Alchemist. I support Ladies who Leave to make smart emotional and financial decisions on divorce. If you don’t have your copy yet, you can download The Smart Woman’s Divorce Guide by completing the box below. Please note, by signing up, you will receive a series of 7 emails over 28 days to accompany the Guide. You will also receive an email from me each Wednesday morning UK time with hints, tips and advice. I sometimes promote my coaching packages too – I’m sure you understand that this is my business :). You may unsubscribe at anytime.

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  1. Meg

    I’m not from the UK so my divorce was under a different framework, but I definitely experienced the benefits of the same basic advice. I was so angry with my unfaithful, abusive husband when I made the decision to file for divorce, and I had a strong, vindictive urge to punish him by pursuing grounds of “cruel and unusual punishment.” Luckily, my lawyer discouraged me from this and while I had trouble seeing it at the time, she was right. He would have been much more likely to fight back, and it could have easily turned into a much more expensive disaster. Looking back five years later, I’m much happier to have saved the money!

    • emma Heptonstall

      Thank you for sharing your experience Meg. Whilst its understandable that you’ll feel these emotions, it pays to have the support of someone who can gently remind you to focus on your outcome. It’s healthier emotionally and you save money!


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