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The Law Society Family Law Acceditation Resolution - First for Family Law
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Five years separation

Overview

This type of divorce is often relied on when all else fails, for example when a spouse refuses to agree to a divorce on any other ground. You can get a divorce on this basis as long as you have been living apart from your spouse for at least five years immediately before the petition is issued. Legally you do not need your spouse’s consent to a divorce, and the reasons for the breakdown of the marriage are not relevant. It doesn’t matter who left who, or who was allegedly to blame for the breakdown of the marriage. However, to enable you to use our service, your spouse will need to agree to a divorce on this basis.

No Defence?


Basically, there is almost no defence to a divorce based on five years separation. Obviously your spouse could dispute the fact that you have actually been living separate and apart for the necessary period - for example, by claiming that the period of separation was shorter than five years. The only other defence that your spouse could raise is that a divorce would cause grave financial or other hardship to him/her, and that it would be wrong in the circumstances to dissolve the marriage. If your spouse serves a defence to your petition, our service would end, but in this unlikely situation you could seek further advice from josiah-lake gardiner.

Reconciliation


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 to obtain a divorce if the attempt to get back together fails, provided 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 five year period of separation.

Example


You and your spouse separate on 1st January 2000. Between that date and the end of 2004 you live together for various periods of time totalling four months, but then finally decide you want a divorce. You would have to wait until 1st May 2005 before issuing a divorce petition – that is, five years and four months from the original date of separation.

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.

Financial Protection


Where a divorce is based on five years separation, 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 help you to conclude the proceedings by applying for the final decree absolute of divorce.

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