How long do you have to be separated before divorce?
This question is often pondered, however an equally appropriate question is: “How long do I need to be married before I can divorce?”
A married person (including same sex married couples) cannot start divorce proceedings until they have been married for a year. Whether or not they live separately does not change this.
Before 12 months
There are very limited grounds for seeking to end a marriage sooner than 12 months, and that is by annulment rather than divorce. The circumstances are generally unusual, such as one person being below the legal age of consent, or not being the sex they claimed to be, or because the marriage ceremony was not legally binding.
More than 12 months
Once you have been married for a year, there are two “facts” on which you can apply for a divorce. For a heterosexual couple this is adultery and “unreasonable behaviour”. Same sex couples cannot divorce on the basis of adultery, but inappropriate sexual behaviour will generally meet the criteria for a behaviour petition. Adultery or behaviour petitions do not require any period of separation first.
If you do not have grounds for adultery or behaviour petitions, there are two further relevant timings: two years and five years.
Two years+
The two years can have started within the first year of marriage, so a couple who separated permanently on their wedding day could start divorce proceedings two years after the wedding.
After two years, if you both agree that there should be a divorce, you can apply for divorce without referring to adultery or behaviour. Parliament has been pressed by public and professional bodies to make this form of divorce available sooner, and timescales of both six months and one year have been proposed. For the time being however, two years remains the earliest date on which such a petition can be started.
To allow couples an opportunity to attempt a reconciliation, the law allows for up to six months of living together after the separation starts, but that time is then disregarded in calculating the total of the two years. So a couple who resume cohabitation for three months will not be able to petition until two years and three months after they first separate.
There is a very rarely used ground of two years’ desertion. This is rarely used because it has a complicated legal definition, and if someone has been deserted for, say, one year, it is highly likely that there would be sufficient grounds to succeed on a behaviour petition in any event, without waiting for another year.
Five years+ of separation
The rules change again if you have lived apart for five years or more. At this point the other person does not have to consent to the divorce. They do however have the right to object to the divorce going ahead if they can show to the court that they will suffer some financial loss that needs to be addressed before it is finalised. This could be regarding loss of pension rights or similar.
If you would like to discuss your own circumstances with a divorce specialist then call the family law team on 01752 203500. Alternatively email me directly via ian.downing@GAsolicitors.com.
Ian Downing, divorce solicitor Plymouth