The background to this issue is that if you are considering getting divorced and have been separated for two years then you can divorce using the no-fault fact of two years separation, so long as you have the consent of your spouse or civil partner.
A 2 year separation divorce is a no-fault fact for divorce in England and Wales. Therefore this means that there is no blame laid on either party and it is an amicable ground for divorce.
Can You Divorce Before 2 Years?
In answer to this common question, can you divorce before 2 years, you can in fact file for divorce 12 months after you have been married or in a civil partnership. Therefore, yes, you can divorce before two years.
However, to do so you must demonstrate to the court that there has been an irretrievable breakdown of the marriage due to your partner’s unreasonable behaviour or adulty (adultery applies to marriage only and not Civil Partnerships). These are known as the fault-based facts for establishing the ground for divorce namely, the irretrievable breakdown of the marriage.
Living Together and 2 Year Separation Divorce
Often once parties separate one of them will usually move out of the family home.
However as you can appreciate this is not always possible usually due to insufficient finances. If this is not possible in your specific case, then do not worry as you only have to demonstrate to the court that you have been living separately and not necessarily in separate houses.
So what constitutes living apart and what the position concerning divorce two years separation living together?
The legal system in England and Wales defines two years separation divorce as living separate lives for more than two years. It does not mean you have to live as two separate households in different locations.
If you are living in the same property as your partner, then you must show that you have been living completely separate lives. For illustration purposes only this means that, you should avoid:
- sharing finances;
- cooking for each other;
- eating meals together;
- attending social engagements together;
- sharing the same bed;
- carrying out domestic chores for each other such as washing and ironing clothes.
The law recognises that during the two-year period there may be times when parties attempt to live together again. However as long as these periods do not add up to more than six months and you have been living apart for at least two years then you can still petition based on the ground of two years separation.
The court also looks for a mental intention to separate too.
Parties must show that they do not intend to live with their spouse again and that the marriage has ended before the 2-year period will commence.
If the parties have lived apart due to work commitments, then this may not form the necessary intention. The parties will need to demonstrate they have been living apart for the purpose of obtaining a divorce evidencing that the relationship is over.
The court can be quite strict when assessing whether parties are living separately. Therefore it is always best to obtain legal advice before proceeding to get divorced based upon two years separation.
The respondent to the divorce must consent to the divorce in writing after the petition for divorce has been served on them. Consent is usually given when the respondent completes and returns the acknowledgement of service form which confirms receipt of the divorce petition by the respondent.
Consent can be withdrawn at any point without reason until the decree is granted. If this happens, and two years’ separation with consent is the only ground for divorce given, the petition for divorce is stopped. It is therefore very important that before embarking up a 2 year separation divorce petition you are sure your partner will agree to it.
It is more difficult to withdraw consent when the decree nisi has been pronounced.
How Much Does A Divorce Cost After 2 Years Separation?
The court fee for issuing a divorce petition is £593.00 and this fee remains the same irrespective of which fact you decide to use to establish the marriage or civil partnership has broken down irretrievably.
Solicitors fees are separate to the court fee and the cost of a divorce depends largely upon the complexity of the divorce itself.
Turning now to the specific question of how much does a divorce cost after 2 years separation, as two years separation is a relatively straightforward and non-contentious fact to establish a divorce you can expect the divorce legal fees to be at the lower end of the usual divorce costs bracket of £600.00 to £800.00 plus VAT.
There are many reasons not to wait for a period of two years before divorcing, but if you do decide to do this, having received appropriate independent legal advice, then it is advisable, in the intervening period, to try and resolve the usually more contentious issue of the division of the matrimonial finances, with any agreement reached being recorded in a legal document called a Separation Agreement.
It must be remembered however that whilst persuasive in evidencing the parties intentions such agreement it will still not necessarily be binding within divorce proceedings especially because the court will be required to approve any final agreement reached in the exercise of it’s powers under the Matrimonial Causes Act 1973.
READ MORE ON GROUNDS FOR DIVORCE
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Article by Jayde Hampson