Divorce based on Five Years’ Separation

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.

A couple is allowed to divorce once they have been married for at least a year and it can be shown that the marriage has irretrievably broken down. There are five facts that can be used to evidence the breakdown of the marriage:

• Adultery
• Unreasonable behaviour
• Desertion
• Separation for two years with consent
• Separation for five years without consent

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What are the requirements for five years’ separation?

The court has to be satisfied that the marriage has irretrievably broken down and that the parties have been separated for a continuous period amounting to at least five years.

Where these requirements are met, the respondent’s consent is not required, although this does not mean that the petitioner can continue without the respondent being involved. The divorce process still needs to be followed as with every other ground. 

What does separation mean?

The courts recognise that is not always possible to live in separate households before the divorce is finalised for various reasons. It is therefore possible for the parties to remain living in the same house and still use separation as a ground for divorce where they have been effectively leading separate lives.

The petitioner can show that the parties have been living separately if they can demonstrate that they are no longer a couple because they do not:

• Sleep in the same bedroom
• Cook or eat together
• Shop together
• Share a bank account or credit card
• Do activities with their children together
• Share domestic chores, for example, cleaning or doing laundry together/ for the other person.
• Socialise together- for example spending time together during an evening or weekend watching television or seeing friends.

Equally, living in separate homes does not automatically prove that the couple have separated unless one of the parties has decided that the marriage is over and does not see a reconciliation occurring. There is not a requirement for this to be verbalised and the petitioner can use the conduct of the respondent to evidence this. The day that the couple separates is not counted towards the time frame for calculating the five-year period, and this commences from the day after that decision.

What happens if you cohabit during the five-year period?

The courts will not penalise a couple that tries to reconcile and reflect on whether they still wish to separate. Any period (or multiple periods) of cohabitation that add up to less than six months will not completely restart the clock on the separation and will be ignored by the courts. However, these periods of cohabitation will be deducted from the total period and will extend the date that the couples will need to have been separated for- the total period must be at least five years.

However, it does have to be highlighted that if a couple does decide to end the separation (even temporarily) then this could be used to show that the marriage has not in fact irretrievably broken down.

Can the respondent defend the divorce?

There are a few possible routes that the respondent can use, even though they do not need to consent to this ground for the divorce to proceed.

The relationship has not ended

It is possible for a respondent to defend the divorce and object that the marriage has not irretrievable broken down. The respondent can refuse to sign the divorce petition. Where the couple reunited briefly during the five years, it could be that they use this as evidence to show that the marriage has not in fact ended and was just going through a difficult period.

The couple has not been separated for five continuous years

The respondent can also state that there has not been the full five years of continuous separation. Again if the couple reunited during the five years for a period of more than six months then this will mean that any period before the reconciliation will not be counted towards the five-year total and the clock with start again if they subsequently separate.

Grave hardship

The respondent can argue that a divorce would result in grave hardship (financial or otherwise) and so it would be wrong to end the marriage. The court will examine both the conduct and needs of both the parties as well as the interests of any children. The issue of a widow’s pension used to be the main reason for stating that the respondent would suffer grave financial hardship, but there is now the option of pension sharing. 

It is also possible to suffer hardship that is not financial, for example, very religious couples can face issues within their community if they divorce and so could argue that this is a reason why the divorce should not be granted. However, it is generally very difficult to show that the hardship that would be suffered in this situation would be so grave as to justify refusing to allow the divorce to be finalised. 

Consideration of the financial position after the issue of the decree nisi

The respondent can also apply to the court to delay the decree absolute once the decree nisi has been granted so that the financial position of the parties can be considered. This prevents the petitioner from rushing the finalisation of the decree absolute, which can have a negative impact on the respondent’s financial situation.