Two years‘ separation along with the respondent’s consent to divorce proceedings (commonly referred to as “Two years with consent”) is one of the five facts a divorce petitioner can rely upon, in order to prove that his marriage has broken down irretrievably under the Matrimonial Causes Act 1973.
In an undefended case, the court simply accepts the statement made in the divorce petition that the marriage has irretrievably broken down. To establish this fact, the petitioner must prove that:
- The parties have lived apart for a continuous period of at least two years, immediately prior to the petition being filed at court.
- The respondent consents to a decree of divorce being granted.
Whilst the parties will be treated as living apart if they are not living in the same household, even the parties are living in the same household can be “living apart”, if they are leading completely separate lives. Living apart in the same household can be evidenced by the fact the parties no longer:
- Sleep together.
- Cook and eat together.
- Watch television together.
- Carry out domestic chores such as cleaning, washing and ironing for one another.
The above list is not exhaustive and ultimately, it will be for the court to consider each petition on its merits. Given the fact of divorce requires consent, the court ordinarily acknowledges that the two spouses themselves consider that they have lived separately.
Usually consent is given in the acknowledgment of service, confirming receipt of the petition. Consent does not have to be provided in the acknowledgment of service, but it must be clearly evidenced in writing, as consent will not be implied.
The respondent’s consent to a 2 year separation petition can be conditional, e.g. on the petitioner agreeing not to seek an order for the costs of the divorce proceedings. Consent may be withdrawn by the respondent at any time before the decree nisi is pronounced and a reason does not have to be provided. Where the respondent withdraws consent and 2 years‘ separation with consent is the only fact on which the petition can proceed, the petition must be stayed in accordance with FPR 7.12(13).
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.