You can get a divorce if you and your spouse have lived apart for a continuous period of at least two years, so long as your spouse agrees to the divorce. This is often referred to as the consent divorce, because it doesn’t involve any allegations of adultery, desertion, or unreasonable behaviour. Therefore, it is almost always advisable to rely on this ground for divorce, if possible. The whole two year period of separation must already have taken place before the petition can be issued.
Clear, Fair & Simple
The court is not concerned with the reasons for the separation, nor who was allegedly responsible for the split. Living apart is not the same as desertion, which is where one party objects to the separation. You simply need to show that you have lived apart from your spouse for at least two years, and that your spouse consents to the divorce. Please note that consent to a separation is not necessarily the same as consent to a divorce, so sometimes there can be complications.
Living apart under the same Roof
It is legally possible to live separate and apart from your spouse, even if you are both living under the same roof, as long as you maintain separate households within the property. The courts recognise that this does happen, usually for financial reasons. However a fairly strict legal test is applied and you might have to provide details to the court about the actual living arrangements such as whether you share a bedroom, eat meals together or share social time, what arrangements are made for cleaning and other domestic tasks, and how you pay household and other bills.
The law allows parties to try to get back together (referred to as reconciliation) after their initial separation for one single period, or various combined periods, up to a total of six months. You can still rely on the original date of separation if the attempt to get back together fails, as long as you do not live together again as man and wife for more than six months in total after that date. However, you cannot include any periods of attempted reconciliation when you calculate the two year period of separation.
You and your spouse separate on 1st January 2003. Between that date and the end of 2004 you live together for various periods of time totalling four months, but then finally decide you both want a divorce. You would have to wait until 1st May 2005 before issuing a divorce petition – that is, two years and four months from the original date of separation.
Intention to Live Apart
You and your spouse must have actually been living apart for the necessary period of two years, either by being physically separated, or by living in separate households under the same roof. Also, you must have both accepted during the separation that the marriage relationship is over. However, it is not necessary to agree on day one of the separation that there will be a divorce; you can decide this later.
You are not living apart from your spouse if he/she has had to live and work abroad without you under a contract of employment, if you both continue to believe that the marriage is continuing. There must be an actual separation and a termination of the marriage relationship, so sometimes complications can arise. Your spouse’s consent to the divorce or consent to the separation does not need to have been given right at the start of the separation – it can be provided later.
Your spouse’s consent to the divorce must be given voluntarily, and your spouse will need to confirm his/her consent to the court in writing after your petition has been issued. Your spouse could withdraw his/her consent at any time up to the granting of the initial decree nisi of divorce and, if it is withdrawn before that date, you would not be able to get a divorce on this basis. You must not mislead your spouse into giving his/her consent, and he/she must understand the legal position. Even if your spouse is a mental patient, he/she may be capable of consenting to a divorce on this basis.
Where a divorce is based on two years separation with consent, the Respondent spouse is entitled to additional financial protection. He/she can ask the court to look at his/her financial position as it will be after the divorce. If your spouse makes this claim you will not be able to obtain the final decree absolute of divorce, which dissolves your marriage, until the court has dealt with the application. Please note that our service does not include the work required to deal with such a claim. You would need to respond to this application yourself, either by acting as a Litigant in Person or by instructing a firm of solicitors to represent you, such as josiah-lake gardiner. Once this claim was satisfactorily dealt with, justdivorce.co.uk would then be able to conclude the proceedings by applying for the final decree absolute of divorce on your behalf.
Back to top
Free legal information