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

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, and cohabitation will not affect your ability to seek a divorce.

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No Fault divorce

Following the introduction of no-fault divorce in 2022, there is no requirement to assign blame or live separate lives. Only one party needs to confirm that the relationship has irretrievably broken down (couples may also confirm this together if they choose to make a joint application). Whether you and your spouse are living together is irrelevant.

Will living with my spouse affect my divorce settlement?

When seeking a financial remedy order, the family court will consider, amongst other circumstances, the length of the marriage. Living together with your spouse can potentially blur the lines as to when your relationship has really ended - you may consider it to have ended before your spouse does. 

Generally, a longer marriage will result in an equal division of the matrimonial assets. Whereas if the parties are married for a short length of time, they may only recieve a financial settlement large enough to cover their needs. Ultimately though, the family court is afforded significant discretion to achieve an outcome it believes is fair, based on numerous factors. 

If you and your spouse disagree as to when the relationship ended, it will make little difference if you believe it ended a few months before your spouse does.

Options and restrictions under the old law

For divorces started after 4pm on 5th April 2022, no-fault divorce applies. Before this, parties had to prove that their marriage had irretrievably broken down by citing one of five grounds to obtain a divorce. 

Adultery

The ground of adultery could not be cited in a divorce petition where parties continued living together as a couple for a period of at least six months, or several periods amounting to at least six months in total, after the adultery was discovered.

Unreasonable behaviour

Under the old law, a period of cohabitation for more than six months after the most recent incident of unreasonable behaviour cited would be taken into account by the courts. Therefore, in these scenarios, parties had to provide 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 observed that "a husband and wife shall be treated as living apart unless they are living with each other in the same household". It had been noted by the courts that cohabiting spouses could still be considered as "living apart" if they were seen to be leading "separate lives". 

Desertion

Evidently, if spouses were living together, the fact of desertion could not apply, as this ground required a party to have been deserted by their spouse for at least two years.