5 years separation and your divorce

In order to become divorced in England and Wales under the Matrimonial Causes Act 1973, a party must demonstrate to the court that their marriage has irretrievably broken down. This is demonstrated by evidencing the breakdown by one of 5 facts to the court, including demonstrating to the court that the parties have lived apart continuously for at least a 5 year period immediately prior to the petition.

Details of the date of separation must be included in the petition itself. When deciding whether the separation has been continuous, the court will ignore any cohabitation for a period (or periods adding up to) 6 months or less. However, no period during which the parties cohabit counts as part of the period of separation: the parties must have lived separate and apart for at least 5 years.

For the parties to be living separately for a minimum of 5 years, a physical separation does not necessarily mean the parties are living apart. At least one of them must also regard the marriage as at an end and intend not to live with the other spouse again.

Whilst the respondent spouse does not have to provide their consent to the fact of the petition, the petition can be rebutted by one of two reasons. Either, the respondent disputes that the 5 year separation has occurred, or that dissolution of the marriage would leave them in “… grave financial or other hardship…”, under section 5 of the 1973 Act. In deciding whether these criteria are met, the court must consider all the circumstances of the case, including the following:

  • The parties’ conduct.
  • The interests of the parties.
  • The interests of any children or other persons concerned.

The reported case law demonstrates that “grave hardship” is usually financial and includes the loss of a benefit the respondent spouse might acquire if the marriage was not dissolved. Much of the reported cases relate to the potential loss of a pension, although more recently reported cases revolve around religious, cultural or community ostracism.

In practice, it is increasingly difficult for a respondent to prove that non-financial hardship is grave enough to warrant refusing a decree of divorce and there would have to be persuasive evidence from the respondent and no doubt religious or society leaders from their community supporting this position.

If you wish to discuss divorce proceedings with one of our expert solicitors, contact us on 01234 889777 to arrange a free consultation. Hunter & Uro Solicitors provide specialist family law advice to clients in Bedford, Northampton and the surrounding rural villages.

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