How long do you have to be separated to file for divorce?

Have you found yourself contemplating divorce? Are you separated from your partner, wondering if divorce is an option for you? The following guidance’s may help provide clarity on your situation.

In England and Wales, no legal time limit determines when divorce proceedings can be started. However, a minimum period of one year is required to have a divorce fully granted. That may have you wondering – can I get divorced after one year? The reality is that it is not quite that simple. 

A commonly overlooked loophole in the divorce proceedings directly contradicts this one-year guideline. To apply for what is called a decree nisi, which is the first formal step towards a divorce, you must be able to prove that your marriage is beyond reconciliation. 

Proving irretrievable breakdown of a marriage must be done using one of five legally recognised reasons: 

1. One person has committed adultery
2. One person’s behaviour is unreasonable and intolerable to live with
3. The couple has been separated for two years and both consent to the divorce
4. The couple has been separated for five years, and one party wants a divorce
5. One person has deserted the other 

If more than one of these applies to you, you can choose the one most appropriate to the circumstances of your relationship. A specialised family law solicitor or divorce solicitor would also be able to give clear recommendations for which is the most applicable for your marriage.

Divorcing on the grounds of separation

Despite the one year minimum for divorce, divorce on the grounds of separation takes slightly longer – two of the five grounds for divorce reference separation. As stated above, a minimum period of two years of separation is required if both parties consent to the divorce. However, if one party disagrees or disapproves of the divorce, a minimum of five years separation is needed. It is not necessarily required that you live in separate residences, but you must not be living as a married couple.

Being legally separated requires more than maintaining separate social lives. It means the division of financial obligations, parental responsibilities (if applicable), and independent means of living. To prove legal separation, the petitioner must sign a Statement of Support, at which point they legally attest that the date of separation is valid.

If you have been separated for a period less than two years but both parties consent to the divorce, it may be possible to use another one of the grounds as a reason to begin the divorce proceedings. 

Two years of separation

If both spouses agree to the divorce, a two-year separation is sufficient to apply. It is smart for the petitioner to get the signature of the potential respondent before the petition is issued. Obtaining a preemptive agreement is essential because there is a 550 court fee associated with petitioning for divorce. Once that fee is paid, it cannot be reimbursed. Even if the respondent changes his or her mind, the petition will simply be denied, and the courts are not liable for any refunding.

Five years of separation

A petition for divorce after five years is straightforward. No consent or support from the respondent is required. It is, however, necessary to show that the respondent has been served the paperwork. The most common hiccup in this type of petition is that the petitioner may no longer be in touch with, or know how to contact, the respondent. 

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Concluding Actions

Undergoing a divorce is rarely a happy process. However, if you have been separated from your partner for some time, it may be what is necessary to mutually get your lives back on track and open up your hearts for new experiences. If you need any guidance on a potential divorce or want to learn more about separation as a grounds for divorce, contact a divorce solicitor today!