Divorce based on Two 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.

If your marriage has ended, then it is possible to apply for divorce so long as one of the following five grounds apply:

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

What are the requirements for two years’ separation?

The courts will only grant a divorce where that the marriage has irretrievably broken down. This means that there is no hope of a reconciliation between the couple. If the divorce is based on two years’ separation with consent, the petitioner has to show that there has been a continuous period of separation and that the other party agrees to the divorce on this basis.

In the spring of 2022, couples will be able to use the new no fault divorce route. However, before that, separation with consent is viewed as the most amicable of the possible grounds for divorce. The element of blame is not needed here, as opposed to the grounds of adultery, unreasonable behaviour and desertion. The fact that consent is needed means that the parties are more likely to be able to arrange issues such as division of finances and childcare arrangements in a collaborative way.

What counts as separation?

For this ground to succeed, the parties cannot have been living as a couple for at least two years before the start of the divorce petition. Where one of the parties moves into a different home then this can be quite straightforward to demonstrate. However, it is still possible to remain in the same household and still meet the separated requirement.
In order to show that you have been separated while still living at the same address, it is necessary for the parties to prove that they have been living separate lives. The daily routines and household arrangements will be examined to prove that this is the case. The parties cannot act like they are still a couple and need to sleep, eat, cook, entertain, socialise, shop and perform household chores separately. 

If a couple is living separately but without the intention that this has ended the marriage, then this will not count towards the period of separation. There are various situations where one spouse can live elsewhere but not intend that their marriage is over:

• They can move to a different area or even abroad due for employment purposes.
• One party may need to care for a relative (for example, an elderly parent) in their own home for a period of time.
• A holiday or period of time spent travelling without the other spouse does not automatically mean that there is an intention to separate.

If the intention to separate occurs after one party has moved out then the clock will start from the day after this decision in relation to the two-year period.

Is a period of cohabitation fatal for this ground?

It is recognised that a couple that separates may sometimes doubt if they wish this to be permanent and there can be trial reunions. Where a couple cohabits during the two-year separation period, then this will not be fatal to the divorce process, so long as the time spent together (either one period or several) does not total more than six months. However, the courts will not count these periods of cohabitation towards the two-year total and so any time spent living together will need to be added to the end of the two year-period. 

What does the respondent have to consent to?

The reason that this is regarded as the most amicable ground for divorce at the moment is because it is based on consent. It requires the other spouse agrees to the divorce going ahead (using the basis of being separated for two years) as opposed to having consented to the separation in the first place. 

What if my spouse does not consent?

The other party can withdraw their consent at any point before the decree nisi is granted. If this happens then the divorce will not be able to proceed on this basis. If you are able to speak to your spouse in a constructive manner before you start divorce proceedings, it is advisable to make sure that they agree to the divorce (and on this basis) and get this confirmed in writing. 

If you have been separated for two years and your spouse does not consent or changes their mind, then you have the following options:

1. You can wait until 6th April 2022 and use the no fault divorce route that does not require consent and cannot be contested by the other side.
2. If the other party has committed adultery, then this route can be used, though adultery can be difficult to prove if the other side will not admit it.
3. Where you can show unreasonable behaviour by your spouse then this is another option.
4. If the two-years separation amounts to desertion (so you did not consent to the other party leaving) then it may be possible to use this route, though again it can be difficult to prove all the elements of desertion.
5. It is also possible to wait for five years’ separation and then consent is not required. However, it is unlikely you would need to do this with the introduction of the no fault divorce.