Five years’ separation as a ground of divorce

As one of the reasons for divorce in England five years’ separation without consent is something of a last resort. If a marriage has irretrievably broken down and the parties have lived apart for a continuous period of five years then either party may seek to obtain a divorce regardless of whether the other party consents or not. It would be obviously wrong for one of the parties to a marriage to be able to keep alive the empty shell of a marriage after such a long period of marital separation if the other wanted to bring the marriage to an end by divorce. Very frequently, of course, the reason why a divorce is desired at all is to enable remarriage and this cannot happen until the first marriage has been formally brought to an end. This ground of divorce is necessary as a ground of last resort. Sometimes people refuse to give their consent to divorce for religious reasons and sometimes they refuse just to be difficult. If there were no remedy in this situation it would cause great unhappiness. As it is, the period of five years may be thought much too long by many.

Really it is better not to get into this type of situation and to seek a divorce immediately you realise that the marriage has broken down beyond repair. That is because it is important to realise that it is not always possible to obtain a divorce even on this ground.  Parliament has provided a specific defence to petitions based on five years’ separation in very limited circumstances. In practice this defence can rarely be made out but it is important to realise that there is no absolute right to a divorce even after a separation of five years.

A court can in fact refuse a divorce on this ground if the person opposed to the divorce can establish that to grant the decree would cause her (in almost all cases the defence is mounted by the wife although it is not theoretically limited to wives) “grave financial or other hardship and that it would be wrong in all the circumstances to dissolve the marriage.” Normally this defence applies in cases of long marriages where the wife is elderly and where she would suffer deprivation of, for example, substantial pension benefits if the divorce went though. It is a difficult defence to make out and such cases are rare but there is a defence even to this ground of divorce of last resort if one meets the necessary criteria.

More commonly the complication with this ground for divorce is that the other spouse cannot be found. It is still possible to have a divorce on this ground whether the other spouse can be found or not. However, if the other spouse cannot be found it almost invariably increases cost and delay because of the additional steps a court requires in those circumstances.

People do ask if the separation needs to be registered or recorded in any way. That is one of the reasons they often refer to a legal separation. However, no registering or recording is necessary. Separation is a matter of fact. You have either been separated for a period of time or not.