Two years’ separation with consent as a ground of divorce

As one the five reasons for divorce in England two years’ separation with consent is the one which lends itself best to the so-called “amicable” divorce. There are no allegations of behaviour made and the matter must necessarily proceed by consent. All that is necessary is that both parties must have lived apart for two years, that one petitions for divorce and that the other consents. It is quite simple and rarely causes any problems subject to one major caveat. It is that before presenting a petition on this ground it is prudent to make sure that such consent would be forthcoming. It is very unwise to assume there will be consent. Before using this ground you need to be sure.

If there is no consent then the parties must live apart for five years before one of them can seek a divorce against the other’s will. Please note that there are no formalities about separating. ‘Legal separation’ is something of a misnomer. A separation does not have to ‘registered’ anywhere and separation is different from judicial separation. Separation just means living apart. That is all.

There are perhaps two other things which should be said about this ground for divorce. The first is that it is frequently suggested that the spouses should live apart for two years and then petition for divorce. In fact if the marriage has broken down beyond repair it is rarely a good idea to wait for two years before ending it. If one has a choice in the matter then it is almost always better to issue a divorce petition sooner rather than later. There are two pitfalls involved in waiting:-

1. Divorce after two years’ separation is based on consent. It is not uncommon when those two years have elapsed for that consent to be withheld (for all sorts of rational and/or irrational reasons). If that were to happen then the other spouse might have to wait until they have been separated for five years before he/she can obtain a divorce without consent. Five years is a very long time to wait.

2. It is important that to understand that the courts decide financial
issues between divorcing couples as at the time they are asked to decide and not as at the time of any separation. This means that assets acquired after separation may be taken into account. This offends most people’s sense of justice but it is the way the law works and it is important to be aware of it. Therefore by not seeking a divorce sooner rather than later a person is potentially taking a gamble on the future. Most people do not want to take that risk.

There is a  point worth stressing in respect of this ground for divorce. It is that before relying upon it you must be absolutely sure that the consent will be forthcoming from the other spouse. If the consent is in any way conditional – such as, ‘Sign the house over to me and I will consent’ – then that quickly results in an impasse. It is a waste of time and money to rely upon this reason for divorce if there is the possibility of that type of thing happening. It will not result in a quick divorce. In fact quite the opposite. This ground for divorce is best used when two years separation have already elapsed and both spouses really are agreed. If the marriage has recently broken down then it is usually very bad advice to wait for two years before seeking a divorce. It is almost always better to issue a divorce petition immediately rather than wait two years.

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