How to Divorce on the Grounds of Separation

14 May 2019

Under current law in England and Wales, in order to get a divorce on the grounds of separation, you need to have been separated from your spouse for at least 2 years. This article explains how to apply for a divorce on the basis of separation.

Grounds for Divorce and Separation

In England and Wales, there is just one legally recognised 'ground' for divorce, and that is that the marriage has irretrievably broken down. In order to get divorced it's necessary to prove to the Court that this has happened, citing one of 5 'facts for divorce' as the reason for this.

These are:

  1. Adultery
  2. Unreasonable behaviour
  3. Desertion
  4. Two years' separation (with consent)
  5. Five years' separation (consent not needed)

The first three facts are commonly referred to as 'blame-based' options. This is because one person will need to lay blame on the other for the breakdown of the marriage. The final two facts are blameless, or 'no-fault' options, as neither person is being held solely responsible for the divorce.

Many couples divorce on the basis of two or five years' separation when their relationship has simply not worked out, as they cannot get a divorce on the basis of adultery, unreasonable behaviour or desertion. In order to be granted a divorce on the basis of separation, the couple will need to have been separated for at least two years. This means that divorce proceedings cannot begin until the couple can prove to the Court that this period of separation has passed.

This is something that has come under debate in recent years, and the Government has now confirmed that divorce law in England and Wales will be overhauled to introduce a no-fault divorce option. This will mean that in the future, couples will be able to get divorced without the need to either lay blame on one person or having to wait for two or more years after separating. For the time being, though, the current law still stands.

How to Get a Divorce on the Basis of Separation

Once the required period of time has passed since the couple separated, one person can submit a divorce petition to the Court, stating either two or five years' separation as the reason for the divorce. This person is called the 'Petitioner.'

In order to get divorced on the basis of two years' separation, the other person in the marriage (the 'Respondent') will need to respond to the divorce petition consenting to the divorce. They do this by completing and returning a document called the 'Acknowledgement of Service.' If they fail to consent, then the Court may be unable to grant the divorce on this basis.

To get divorced on the basis of five years' separation, the Respondent does not need to consent. They will, however, need to be notified of the divorce proceedings and they will be asked to return the Acknowledgement of Service to confirm that they have received the divorce papers.

From here, the divorce process is the same as if any of the other facts for divorce had been cited. Once the Acknowledgement of Service has been returned to the Court, the Petitioner can apply to the Court for the Decree Nisi. Six weeks and one day after the Decree Nisi has been granted, the Petitioner can apply for the Decree Absolute. This is the final decree in a divorce and once this has been issued the marriage will have legally ended.

More articles