Can I divorce my spouse if we live in the same house?

Please note that the following guide only applies to divorces started before 4pm on 5th April 2022. For divorces after this date, no fault divorce now applies.

The short answer is yes. There are various reasons why one might wish to remain living in the same house as their spouse whilst undergoing divorce proceedings. It may be that matters remain amicable between the pairing, a sense of "normality" is being attempted for the sake of children, or more likely due to financial necessity, especially if the home needs to be sold before the parties can move into separate properties. These are all legitimate reasons to remain cohabiting, however, it is important to note that certain statutory rules and common practices exist that prevent a divorce being granted if two spouses are still living together as a couple in the same property.

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What are my options, and what are the restrictions?

In order to obtain a divorce under English law, it is necessary to prove that the marriage has irretrievably broken down by citing one of five grounds. If you remain living in the same house, then it helpful to bear the requirements for these grounds in mind to ensure it does not affect the divorce itself.

Adultery

The ground of adultery cannot be cited in a divorce petition where, after finding out your spouse has been unfaithful, you have continued to live together as a couple for a period of at least six months, or several periods amounting to at least six months in total.

Unreasonable behaviour

While a petition will not be prevented by the court if you are still living together for more than six months after the most recent incident of unreasonable behaviour cited, this period of cohabitation will nonetheless be taken into account by the courts. Therefore, in these scenarios, you must be prepared to give sufficient reason for having continued to live together during this period of time. An example of this can be found in Bradley v Bradley, whereby a divorce petition was allowed to proceed in these circumstances on the basis that the petitioner had no other alternative living arrangements.

Separation

For both two and five years separation, the law observes that "a husband and wife shall be treated as living apart unless they are living with each other in the same household". It has been noted by the courts that cohabiting spouses can still be considered as "living apart" if they are seen to be leading "separate lives". How this can be exemplified to the courts is detailed below.

This however remains a strict interpretation by the courts, who must have evidence of separate lives such as separate laundry, cooking and eating eating and sleeping arrangements.

Desertion

Evidently, if you are still living with your spouse, the fact of desertion will not apply, as this ground requires you to have been deserted by your spouse for at least two years.

How can I prove we have been leading separate lives despite living in the same house?

It is important to note that, while remaining cohabited is not necessarily fatal to a divorce proceeding successfully, the courts take a strict approach when drawing the line between simply living together and living together whilst leading separate lives. There exists numerous past divorce cases which give useful guidance as to what kind of living arrangements you must implement in order to satisfy the court that you are leading separate lives.

This can be illustrated with two cases of Hollens v Hollens and Mouncer v Mouncer. In Hollens v Hollens, the wife’s petition was allowed to proceed despite the parties living under the same roof, given that the petitioner and her husband had neither spoken, eaten or slept together during that time. On the other hand, in Mouncer v Mouncer, though the parties had separate sleeping arrangements, the wife still cooked for the husband and they continued to eat together. In this latter case, the court however decided that a divorce could not be granted.

Therefore, following the above guidance, couples should consider completely individualising their household activities, which includes not only sleeping arrangements but finance, laundry, childcare and dining. This is, of course, not an exhaustive list and we recommend that you seek expert legal advice.