Do I have to be separated to get a divorce?

Do I have to be separated to get a divorce?

It is commonly assumed that you have to be separated from your spouse before you can get a divorce. But is this true?

There is some logic in the assumption. After all, to get divorced you have to show that the marriage has broken down irretrievably. Surely, this could be difficult if you and your spouse are still living under the same roof?

What is separation?

And that brings us to the next question, which must be answered first: do you have to be living in different households to be legally separated?

We can answer this question by looking at the current law on divorce (the law is of course due to change in April, when no-fault divorce comes in, as we will discuss in a moment).

Under the present law in order to get divorced you must show that the marriage has broken down irretrievably by proving one of five things: that your spouse has committed adultery, that they have behaved unreasonably, that they have deserted you for two years, that you have been separated for two years and your spouse consents to a divorce, or that you have been separated for five years.

Those last two ways of proving irretrievable breakdown require the separation of the parties, and have therefore led to the courts considering what is meant by ‘separation’.

The reported cases have shown that you do not need to be living in different households to be separated for the purpose of divorce proceedings. It is quite possible to be living separately, albeit under the same roof.

However, you do need to be living completely separately. Just sleeping in separate bedrooms is not enough. Any sharing of a “common life”, for example cooking meals for each other, has been held to mean that there is no legal separation.

Two divorce systems  

OK, back to the main question: do you have to be separated to get a divorce?

We have, in fact, already partly answered the question.

As we have seen, under the present divorce system you do obviously need to be separated from your spouse if you wish to divorce on the basis of two or five years’ separation.

But what about the other ways of proving irretrievable breakdown of the marriage, and what about the new no-fault divorce system?

The simple answer here is that you do not need to be separated from your spouse in order to get a divorce.

There is, however, one caveat when it comes to the current divorce system.

Under the present system you do still need to prove to the court that the marriage has irretrievably broken down. Just proving, for example, that your spouse has behaved unreasonably may not be enough – it is still possible that the court is not satisfied that the marriage has broken down irretrievably, for example because the parties are still living together and sharing their lives, as if ‘happily married’.

However, it has to be said that this is in reality little more than a technicality. It is highly unlikely that the court would refuse a divorce in such circumstances.

And under the new no-fault divorce system it will become even clearer as, whilst it will still be necessary to show that the marriage has irretrievably broken down (i.e. the ground for divorce will remain the same as under the present system), it will no longer be necessary to prove this.

Under the new system one or both of the parties will file with the court a statement that the marriage has irretrievably broken down, and the court will accept the statement as proof of irretrievable breakdown. It will no longer be up to the court to decide whether the marriage has in fact broken down.

So when the new no-fault divorce system comes in the answer to the question will be very simple: no, you will not have to be separated to get a divorce.

Please get in touch via our contact page and speak with one of our Specialist Solicitors today and see if we can help you with your situation.