Question
A frequent question we are asked is “Do I have to wait two years before I can get divorced”.
Answer
Mark Chapman, Head of Family Law replies:
The straightforward answer is no. However how you decide to move things forward must be a decision for you, but one based on sound legal advice.
The only ground for divorce is the irretrievable breakdown of the marriage. Once you have decided that the marriage has broken down, then you must choose one of the five facts on which you wish to rely in order to proceed with the divorce.
One of those five facts is two years’ separation with consent. In practical terms this means that you and your spouse must have been physically living separate lives for two years, without there being any intimacy. This does not necessarily mean that you have to have lived in separate households for two years. Ideally that would be the case, as that physical separation is irrefutable as to the length and nature.
In some circumstances the above may not have been possible, such as it not being affordable to run two separate households. In circumstances like this, provided you have lived separate lives, albeit under the same roof, for a period of two years, then subject to certain criteria, it may be possible to proceed on this fact. Those criteria include not living as spouses, in short, not sharing the day to day activities that you might ordinarily have done with your spouse, such as cooking for each other, doing the housework for your joint benefit, being intimate / sharing a bedroom. You do though need to bear in mind that a Judge can raise questions in order to understand whether there has been a strict two year separation or not, if there might be some ambiguity, which can then increase the legal costs in dealing with the divorce (you might need to file a formal statement setting out the position, with your spouse then being ordered to do the same, pending further investigations) and the end result could mean the Judge refusing to allow the petition to proceed, because he or she does not view the alleged separation as satisfying the criteria. In those circumstances, you would either have to wait until such time as it was beyond doubt that there had been two years’ separation, or in the alternative, proceed with a new divorce petition on the basis of behaviour (or adultery if relevant).
For those who have not been separated for two years, but who may be thinking of placing the divorce on hold until such time as that fact becomes available to use, if you are perhaps within 6 months of reaching that point, then it may be prudent to delay proceeding with the divorce, albeit you can immediately begin a dialogue with your lawyer and indeed the other spouse so as not to lose the opportunity to make some meaningful progress in the interim. You do though need to bear in mind that you need the consent of the other spouse in order to use this fact. If they do not consent (& they do not have to give a reason) then even once two years have passed from the point of separation, this fact remains unavailable for you. In those circumstances, you would either need to wait until such time as you had been separated for 5 years (as you do not then need the consent of the other spouse to divorce), or proceed with a petition based on behaviour (again where you do not need consent), or indeed adultery (provided the relevant criteria were satisfied).
Overarching all of the above though is matters relating to the matrimonial finances. It is very rare that we will assist a client on a divorce in isolation to resolving the division of the matrimonial finances. Whilst a divorce and dealing with the finances do not have to go hand in hand, they more often than not do run in tandem. Any agreement on how to deal with the finances should be set down in a legal document called a Consent Order, which gets sent to the Judge for approval. You cannot though submit a Consent Order to the Court for approval until such time as you are already divorced or have reached the Decree Nisi stage within the divorce.
If you wish to wait for two years before proceeding with a divorce based on that fact, not only do you need the consent of the other spouse, but in relation to the finances, there is no guarantee that you will be on speaking terms with your spouse at that point in the future (or indeed that you may know their whereabouts), which could then make matters more complicated and therefore expensive in trying to resolve. As such, it will more than likely be advisable to proceed with a divorce petition based on behaviour or adultery, as you can begin that process immediately, but more importantly, turn your attention to trying to resolve the finances. You should not be swayed against a petition on behaviour, as the allegations can be kept mild, and there are very few cases where the reasons for the divorce will impact on the finances or indeed the arrangements that may need to be put in place over seeing a child or children.
If you do decide, having received legal advice, that the right thing to do for you and your family, is to wait for two years before divorcing on that fact, then it will be advisable, in the intervening period, to try and resolve the division of the matrimonial finances, with that agreement being put down in a legal document called a Separation Agreement. Provided defined criteria are adhered to in the drawing up of that Separation Agreement, then you will be bound to its terms but you will, at Decree Nisi stage of the to be filed divorce petition, need to have that document mirrored into a Consent Order.
If you have a query or would like to book an appointment please get in touch with our Family Law team on 01256 320555 or email mail@clarkeandson.co.uk.
