If you are divorcing on the grounds of separation you will need to have been separated for two years (if you both agree) or five years (if you don’t agree) before you can start the process.
If you are looking to issue a divorce petition immediately, it has to be based on complaints of behaviour or adultery. Unfortunately, we do not have the ‘no-fault’ divorce that we keep being promised although the Divorce, Dissolution and Separation Bill is passing through parliament (read the latest update here).
How long do you have to be separated before divorce?
The options to divorce on the grounds of separation are as follows:
- 2 years separation with consent
- 2 years desertion
- 5 years separation without consent
2 years separation with consent
Always be mindful here that if your former spouse will not consent to this petition, then it will not proceed.
In practice, I always write to a potential Respondent (the person receiving the divorce petition) and obtain their written consent at the outset before a petition is issued.
The reason for this is primarily due to costs. There is a court issue fee of £550. If you lodge your petition and the Respondent refuses to co-operate, not only is the court fee wasted (as well as the costs of preparing the petition) but you would be unable to progress any further.
It then becomes necessary to withdraw this petition with the inherent costs of that. You will be left having to start a petition based on a different ground.
2 years desertion
These petitions are incredibly rare and indeed in many years of practice, I have yet to come across one. I think the issue with this petition is that it can be difficult to prove desertion.
Most couples will simply use the two-year separation with consent instead. Another point is that if someone has truly deserted then you may not know their address which makes it difficult to start the process and get them served with the papers in any event.
5 years separation
These petitions are very easy. No consent is required from the Respondent. In practice, they are however very rare because usually, couples want to dissolve marriages much earlier.
Although the Respondent does not need to give his or her consent to the petition, you do need to show that they have received the paperwork.
The most common issue with this petition is if you do not know where the Respondent is living and need to locate them which may be difficult.
Frequently asked questions about divorce and separation
How do I prove we have separated?
The Petitioner signs a Statement in Support of the petition at stage 2. At this point, you ‘attest’ that the date of separation in your petition is true.
How long do you have to be separated before divorce is automatic?
I have had many clients say to me that they thought that the divorce ‘happened automatically’ after a lengthy separation.
This is not correct. You would still have to issue your petition and go through all of the required stages no matter what petition you use. It will usually take 5-7 months from the start of the process to obtain the decree absolute – all depending upon how busy your local court is.
The issue of finances will need to be dealt with if any still exist between you and your spouse. Generally, on separation, the finances have already been dealt with.
This can then result in either people not looking at the financial situation or (more commonly) the structure of the financial deal that was agreed at separation is put into a court order which is then approved by a District Judge to finalise financial matters for good.
In practice, the most common divorce petitions we see are those based on behaviour and adultery however, there are options open to couples who are willing to wait for the appropriate separation period.
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