Divorce. A word synonymous, to most people, with overt acrimony. This is perhaps largely attributable to the law in England and Wales requires that one of five facts (or “grounds”) leading to an irretrievable breakdown must be established before a divorce can be granted, the most common of these being "unreasonable behaviour". To establish the ground of unreasonable behaviour, a statement must be filed by the person making the divorce application (that person then being known as the “Petitioner”) detailing acts and instances of unpleasant behaviour by his or her spouse, and is required within the Divorce Petition used to start the whole process with the Court. Naturally, these often make for unpleasant reading for the spouse on the receiving end (the “Respondent”) and can - and frequently do - add fuel to an already rapidly escalating fire.
But is there a way it can be done amicably and in a manner agreeable to both, without one making accusations of the other, providing a means for both to move on from an undoubtedly painful life change? The good news is yes - it can. Of the five facts referred to above, there are a further four available under s 1 (2) of the Matrimonial Causes Act 1973, these are:
- two years' separation and consent
- five years' separation
For those spouses wishing to divorce from the other without delving into the realms of official mudslinging, two years’ separation and consent will likely be the most appealing, if they can reasonably wait that long.
You would be with the masses if you think this sounds simple. Indeed, most would take the view it was easy enough; simply separate for two years and then file your divorce petition, possibly even being bold enough as to doing so without enlisting the services of a solicitor who will charge you for the job. You could not be more wrong. There is far more to consider than at first glance when opting to rely upon this ground, and failure to do so could mean your divorce petition is refused or, even worse, later deemed to have been void..
So what should you consider in order to make sure you don’t fall victim to any of these scenarios?
How does the law define “separation”?
By reference to s 1 (2) (d) of the Matrimonial Causes Act 1975 (“MCA 1975”), the Court must be satisfied that the marriage has irretrievably broken down and such can be established if “the parties to the marriage have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition and the respondent consents to a decree being granted”.
Two Year Time Period
In terms of when that time period for calculating the two years separation starts and ends, case law determines the precise calculation and what is and is not included. For example, the day upon which actual separation first occurs is excluded and the date which sees the two year period conclude must have passed before the date of the Divorce Petition. Interestingly, it matters not whether a spouse has communicated to the other that the relationship has ended only that separation occurs. (See the case of Santos v Santos  2 All ER 246 for further information).
Parties should be mindful of the potential pitfalls of s. 2 (5) MCA 1973 which provides assistance as to whether a two year period must be continuous; any period not exceeding 6 months or any two or more periods not exceeding 6 months in total in which the parties resume living together shall be taken into account, however any such periods cannot be said to count towards the period of “living apart”. In simple terms, the period of separation must be continuous without breaks.
What constitutes “living apart” and is it possible to do so while living in the same household?
In the case of Mouncer v Mouncer  1 All ER 289, the Court considered whether it is in fact possible for a couple to have “lived apart” even when living under the same roof. In Mouncer the husband and wife were on incredibly bad terms with one another, living in the same household in separate bedrooms; the husband wishing to remain in situ in order to help with, and be around, their two children. Perhaps not an entirely unreasonable nor uncommon rationale. It was submitted to the Court in that case that they both took meals together with the children, frequently made by the wife, but that they led otherwise entirely separate lives from another. The wife even going so far as to make clear submission that she no longer did the husband’s washing.
The judge refused to allow the divorce on the reasoning that “a rejection of a normal physical relationship coupled with an absence of normal affection” is not enough to satisfy the provisions of s 1 (2) (d). What this means in practice is that it is certainly not impossible to remain under the same roof but parties must ensure that lives are led as separately as if parties were living in separate homes entirely - no shared meals, social engagements, finances, groceries and laundry arrangements etc. - bearing in mind that this is still not fail-safe.
There are also strict requirements in relation to the provision, and establishing of, the Respondent’s consent. It is not enough to consent to the separation; consent must be specifically in relation to the Divorce Petition. Further, it is possible for consent to be withdrawn at any time prior to decree nisi (The penultimate stage in a divorce) being granted, as was determined in the case of Beales v Beales  2 All ER 667.
A Respondent can still challenge the giving of his or her consent post decree nisi by virtue of s 10 (1) MCA 19775 if he/she later contends that consent was given as result of some misleading, whether intentional or not, at the hands of the Petitioner which attributed or caused the giving of the Consent.
It is thus always advisable to obtain formal confirmation of the Consent prior to issuing a divorce petition on the ground of two years’ separation and consent in case this later falls into an issue.
Defective divorce petitions and the consequences upon granting a divorce
Last April, the President of the Family Division issued formal guidance on the matter of defective divorce petitions as a result of his finding that a number of cases granted decree nisi and or decree absolute (the final divorce certificate) did not in fact satisfy the requirements discussed above. This meant that those Divorce Petitions were defective and thus any subsequent decree made is null and void (in accordance with s 3 (1) MCA 1975. This had serious consequences for any parties that remarried which, in turn, meant that those marriages were invalid.
In the age of the DIY divorce these are gravely concerning consequences which highlight the need to ensure, always, that you are aware of what the law requires. There is no substitute for seeking the skilled advice of a family law professional.
If you are affected by any of the matters discussed above, or are considering divorce or separation yourself, please do get in touch. We're here to help.