To get a divorce in England or Wales on the basis of separation, the couple will need to have lived separately for either 2 years (if both people consent to the divorce) or 5 years (if both people do not consent to the divorce).
To get a divorce on the basis of adultery or unreasonable behaviour there's no need to have been physically separated for any length of time beforehand, but the marriage must have irretrievably broken down.
Legal Requirements for Divorce / Grounds for Divorce
To be granted a divorce, the Court needs to determine that the marriage has irretrievably broken down. For more information see Grounds for Divorce. There are 5 legally acknowledged 'facts' or reasons for marriage breakdown.
- Unreasonable behaviour
- 2 Years' separation - with consent from both people
- 5 Years' separation - not needing consent from both people.
In order for a married couple to be granted a divorce by the Court, one of these reasons will need to be proven. The most appropriate one will vary on the unique facts of the couple's situation.
The law in England and Wales requires that married couples stay married for at least 1 year after their wedding before applying for a divorce. This is to ensure that couples are given an opportunity to attempt married life for a sufficient length of time.
If you want to apply for a divorce before 1 year has passed, then you can get the divorce papers prepared in advance ready to lodge the application as soon as 1 year has passed. This will mean that the application is sent to the Court at the earliest opportunity.
Fixed Fee Divorce costs £300* and you can Start Your Divorce Online at any time.
Separation Based No Fault Divorces
If a marriage breaks down because the couple have lived separately for a set amount of time, then this is known as a No Fault Divorce. This is because neither person is directly to blame for the marriage breaking down. There a two facts for divorce which require the couple to have lived separately for a set period of time. These are 2 years if both people consent or 5 years if they don't.
2 Years' separation is a commonly used fact (reason) for divorce. If you are petitioning for a divorce on this basis, it will be necessary to prove to the Court that you and your spouse separated on a certain date and that 2 years have passed since that date. This fact will also require the consent of your spouse, confirming that they are happy with a divorce and that they also believe there has been a separation of over 2 years.
If you are petitioning for a divorce on the basis of 5 years' separation, the consent of the other person is not required. So the only requirement here is to prove to the Court that you and your spouse separated on a certain date and 5 years have passed since this date.
Occasionally couples who have separated will continue to live together in the same house. This can cause difficulties with proving to the Court that both spouses have been separated for the time periods required. There are circumstances the Court will allow as long as it can be proven that, despite still living together, they are legally separated for the purposes of a divorce.
Fault Based Divorces
Of the 5 legally recognised facts (reasons for divorce), two of these are 'fault based'. This means that one person in the marriage is at fault, and the marriage has broken down because of their actions. These fault-based facts are adultery and unreasonable behaviour. There is no requirement for the couple to have been physically separated for any length of time before getting divorced for one of these reasons but the marriage must have irretrievably broken down.
Adultery will require one person in the marriage to have had a physical relationship with another person of the opposite sex. Once the other person in the marriage has found out about the adultery they will need to take action to separate from their spouse within 6 months. If they do not separate within this 6 month time period then the adultery fact (reason) for divorce cannot be used. Adultery will also usually require a confession from the spouse that committed the adultery. Without this it can be very difficult to prove the adultery has occurred.
The other fault-based fact, unreasonable behaviour, is one of the most common facts (reasons) for divorce that is used. When using this fact, it's necessary for one person to prove to the Court that their spouse's actions are so unreasonable that they should not have to remain married to them any longer. The Court would usually require a few examples of this behaviour for a Judge to consider whether the divorce should be granted.
Usually with these types of fault-based divorces, legal costs can be claimed back against the other person. However, it's worth bearing in mind that occasionally the claim for costs can aggravate matters further. There are a few options and our Divorce Lawyers could advise you on the best way of claiming back the divorce costs.
Divorce Where a Spouse Has Disappeared
The last, and least used, fact (reason) for divorce is desertion. To use this fact it will need to be proven to the Court that your spouse has disappeared for 2 continuous years before you start the divorce proceedings.
The Court will usually require sufficient searches to be carried out to find the other person. They will also need to be satisfied that the person seeking the divorce did not consent or agree to the reason why their spouse left.
How Our Divorce Lawyers Can Help You
As shown above there are various 'facts' (reasons) that can be used to get a divorce. Some of these require the couple to have lived separately for a certain amount of time, while others do not. Based on your individual circumstances, our Divorce Lawyers can advise you on the most appropriate 'fact' to use for your divorce.
Depending on the fact used, we can also advise you on the best way to claim back your costs against the other person, if this applies. If you are still living together and seeking a divorce on the basis of separation, we can advise you on whether the Court would accept that you are separated and, if not, advise you of which other facts you may be able to use instead to achieve the divorce.
We can guide you through the divorce process to make it as straightforward and stress-free as possible.
For free initial divorce advice call our Divorce Lawyers on 03306069626 or contact us online and we will call you.
* Our Fixed Fee Divorce service costs £300 including VAT and provides you with a Divorce Lawyer to take you through the usual steps in an uncontested (not disputed) divorce. In addition to our fixed fee, a Court fee of £550 is payable directly to the Court where you file for divorce.