August 17th, 2018
The only way in England & Wales to obtain a divorce is to show that the marriage has irretrievably broken down (S1 Matrimonial Causes Act (MCA) 1973). This is supported by one of five facts i.e. the reason for the irretrievable breakdown. The same rules apply for a dissolution of a civil partnership (S44 Civil Partnership Act 2004).
In a previous blog, adultery and behaviour were explored and it was concluded that reliance on one of these facts can further erode the amiability between the parties, therefore making them undesirable as proving the ground for divorce.
The only alternative is for the divorce to be supported by the facts of two/five years’ separation or desertion under S1(2) MCA 1973 (c)-(e).
Two Years’ Separation with Consent
This is a significant ground acknowledging that a divorce can be obtained with the consent of both parties. Unlike adultery or behaviour, it is a non-blameworthy fact and requires the parties to have been living apart and for them both to consent to the divorce going ahead. Although the MCA stipulates that a separation is to be found unless the parties are living in the same household (Section 2 (6)), a divorce can be granted where they can show that they are living separate lives although under the same roof. However, the bar for this is rather high and will not be satisfied where the parties, for example, cook meals for one another or share the household chores.
The separation must be for a continuous period of two years, although there is allowance for the parties to resume living together for up to six months (S2 (5) MCA) – any more than this and the accruement will reset.
Five Years’ Separation without Consent
If the parties have lived separately for 5 years or more, one can obtain a divorce without the other’s consent. Formerly controversial, there are occasions where a respondent under this ground can oppose the granting of a divorce on the basis that it would cause grave financial or other hardship to him/her and it would in all the circumstances be wrong to dissolve the marriage (S5(1) MCA) although this is rare. In most cases, couples living apart for five years or longer are content to formalise their separation with a divorce. Sometimes, however, they may wish to remain married in order to claim certain financial advantages, although this could also be dealt with upon divorce by drawing up a financial Consent Order.
Not commonly pursued, this fact requires the respondent to have unjustifiably withdrawn themselves from cohabitation without the consent of the other spouse, with the intention of remaining separated permanently. The parties must be factually separated, as in with the ground of separation, by living in separate households. The main difference between this and two years’ separation is that the desertion must be against the will of the respondent, whereas couples relying on the former, as mentioned, consent to the separation.
In conclusion, the facts proving the irretrievable breakdown of a marriage either require the attribution of blame or a prolonged period of separation, requiring the married parties to factually be residing in different households or living completely separate lives. While arguably more desirable than adultery or behaviour divorce petitions, petitions relying upon separation or desertion are far less common as most couples prefer to divorce quickly rather than remaining married simply so that they can be less confrontational.
Some may say that the law is this way due to its aim to encourage married couples to reconcile, however, it is more often the case that the opposite effect ensues – couples who have not been separated for two years or more essentially attack each other’s character on a behaviour petition or blame them on an adultery one, therefore diminishing the relationship even further, which has obvious and unfortunate consequences for any child of that relationship.
Having recently graduated with her first class honours degree in law from the University of Bedfordshire, Holly is keen to explore her interest in Family Law. She has previously volunteered with public legal advice services and hopes to eventually qualify as a family Solicitor. Holly joined Hawkins Family Law in August 2017.
Hawkins Family Law fields 'a very professional team that delivers a high-class service and has strength-in-depth from senior to junior level'. Managing director and team head Jo Hawkins provides 'clear and accurate advice and moral support through often testing times for her clients; she focuses on deriving the best long-term outcome for her client and other parties'. The practice has particular strength financial matters, including divorce and ToLATA proceedings. Other key figures include Loraine Davenport, who has strong collaborative law expertise and handles complex children cases and high-net-worth ancillary relief matters; Annabel Hayward, who focuses on complex financial provision and co-habitation matters; and Stacey St Clair.
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Boutique family law firm that punches above its weight in terms of high-value and complex matrimonial finance instructions relating to business assets, pensions and substantial property portfolios, including assisting with the handling of assets abroad. Also represents clients in the negotiation of wealth protection agreements and private law childcare arrangements. Fields a team trained in collaborative law and alternative dispute resolution.
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