In some cases, it is necessary to be separated for a period of time before a divorce will be granted. We look at the details.
In order to obtain a divorce, you must have been married for at least a year. If you then wish to apply to the court for a divorce, you will need to show that the relationship has irretrievably broken down.
Alleging irretrievable breakdown
The single basis for divorce is irretrievable breakdown of a marriage. To demonstrate this to the court, one of five facts must be proved:
- Your spouse has committed adultery;
- Your spouse has behaved unreasonably;
- You have lived apart for a continuous period of two years immediately before making your divorce application and your spouse consents to the divorce;
- You have lived apart for a continuous period of five years;
- Your spouse has deserted you for a continuous period of two years.
You can only choose one of these five facts as the basis for your divorce. At present there is no ‘no fault’ divorce available, although this may well be an option in the future as divorce law reform is planned.
The current situation means that couples who are still in an amicable relationship with each other may still choose to allege unreasonable behaviour if they wish to divorce but have not lived apart for the required two years.
Two-year separation period
Waiting for two years before commencing divorce proceedings means that neither party has to place blame on the other. This can allow things to proceed more amicably.
However, it can prevent people from moving on and will delay the agreement of any binding financial settlement. There is the option to put in place a separation agreement when you stop living together. This can include how you might want to divide assets and property, who will be responsible for payment of bills, arrangements for children and an agreement not to interfere in your spouse’s life.
Such an agreement is not legally binding, although a court may give consideration to it, but it can help couples navigate the period between separation and divorce.
Going ahead before two years are up
There may be benefits to proceeding with a divorce without waiting two years. By putting a financial agreement in place as soon as possible, you may protect money which you may receive from a future pay rise, increase in property value or pension payments made during the two years.
Similarly, your spouse may incur debts or move money in those two years, leaving you worse off.
If you would like to speak to one of our divorce experts, ring us on 0345 2413100 or email us at mail@cplaw.co.uk.
