How long do I have to be separated to get divorced?
Many people believe that you cannot even consider divorce until you have been separated from your spouse for two years, however this is not the case.
Under Section 3 of the Matrimonial Causes Act 1973 you are unable to send a divorce petition into the Court until a full year has passed from the date that you married. As the divorce petition asks for the date of the marriage, and you will need to send your marriage certificate (or official copy from the registry – photocopies are not accepted) into the Court with your petition, and we would normally state the date of separation within the petition, then there is no way around it.
Therefore, the earliest that you can send a petition into Court will be 12 calendar months and one day after the date you married. For example, if you married on 3rd April you cannot send a petition into Court until 4th April the following year.
There is only one ground for divorce and that is that the marriage has broken down irretrievably, ie that there is no chance of reconciliation. If you have only been married for a short time, then it may be worth referring to relationship counselling before deciding whether or not to legally end the marriage.
If you are certain that you are past the point of no return then you can be ready to issue at the earliest opportunity and there is no need to wait for 12 months to have passed before seeking legal advice or instructing solicitors.
Until the ‘no fault’ divorce is introduced, if you do want to issue at the earliest opportunity then you will need to rely on one of two facts, either :-
‘the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent’; or
‘the respondent had behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent’
Under the protocol that most family lawyers follow, a copy of the proposed petition is sent to the other person (“the respondent”) for his/her consideration before it is sent to the Court for issuing. If there is any particular issue with the wording that the respondent wishes to raise, or he/she believes a date is wrong, these matters can be resolved in advance of the petition going to Court and will therefore avoid delay. All this can therefore be done before the 12 month period expires.
In addition, if you are relying on the respondent’s adultery it is always useful to have a Form of Admission signed before the petition is drafted. If the respondent is willing to sign and return this form then it gives a good indication that they will engage in the divorce process. If the respondent is not willing to sign then it is advisable to issue on the basis of behaviour - as the other party to the divorce does not need to admit to anything that is said about them in the petition, - and if they fail to respond to the divorce there are other applications that can be made which will enable the divorce to progress.
It should also be noted that you can be separated from your husband/wife but living under the same roof. Provided that you are not sleeping in the same bed, not cooking or cleaning for each other, not eating meals together, not spending time with each other and not socialising together, then you can be classed as “separated”. The date of separation does not necessarily mean the date that someone physically moved out of the marital home as, in a lot of cases, neither can afford to and they have no friends or family that they can stay with temporarily.