How to establish two years’ separation with consent

Anyone seeking a divorce must satisfy one of the five grounds for divorce to prove that a marriage has broken down irretrievably, one of which is two years’ separation with consent.  

To establish the two years’ separation with consent, you must prove that:

• You have both lived apart for a continuous period of at least two years immediately before the filing of the petition with court
• The respondent consents to the granting of the divorce

Separation

If the parties are not living in the same household, they are considered to be living apart. However, even if they are in the same household, it does not stop them being considered living apart if they lead completely separate lives. To prove this you must no longer be:

• Sleeping together
• Cooking and eating together
• Watching television together
• Carrying out domestic chores for each other, for example washing and ironing clothes 

One of the parties must consider the marriage to be at an end and not intend to live with the other party again. This intention does not have to be communicated to the other party, and intention alone can be relied upon, which can be established by that party’s conduct. For example if one party began to cohabit with a third party, or lives away from home for work purposes and stops communicating with the other party.

Consent

The respondent must consent to the divorce in writing at any point after the petition for divorce has been served on them. Consent is often given along with the acknowledgment of service which confirms receipt of the petition, in which case the respondent and their legal representative must sign the acknowledgment of service.

It is important to note that consent cannot be implied and must be clearly set out in writing. The respondent must be able to understand the nature and effect of giving consent.

Someone can add conditions to the consent, for example that the petitioner agrees to not seek costs to pay for the divorce proceedings. Consent can also be withdrawn at any point without reason until the decree is granted.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 more difficult to withdraw consent when the decree nisi has been pronounced. The respondent can apply to the court for this, but must rely on the grounds that they were misled when deciding whether to consent. However, usually the court will grant the decree absolute, despite one party being misled, provided there are no serious consequences. An example of a serious consequence might be financial non-disclosure, making the financial provision made no longer reasonable, or one party being left in a precarious position financially after the divorce.

What if the parties cohabit?

When deciding whether a separation is continuous, courts will ignore any cohabiting period of six months or less. But, periods of time for which the parties cohabit do not count towards the period of separation. They must have lived separate and apart for at least two years.

This view is taken by the courts to give the parties time to look back on their relationship and try to reconcile without having to be concerned about prejudicing divorce proceedings. For example one party might tell the other they will change their behaviour in attempt to save the marriage. However, it is important to note that if separate periods of cohabitation are added together exceed six months, this may demonstrate that the parties did not consider the marriage to be ended and it has not been irretrievably broken down. Although a petitioner should be encouraged to attempt to reconcile, they need to be aware that cohabiting with their partner for an extended period of time, or a number of shorter periods, during the separation may hinder the likelihood of being able to rely on this fact.

Respondent’s financial position

If the petitioner’s only ground for divorce on the petition to prove the irretrievable breakdown of the marriage is two years’ separation with consent, and the decree nisi has already been granted, the respondent can ask the court to consider their financial position after the divorce.

One would have to make an application for this which would delay the decree absolute being granted. A petitioner does not often apply for decree absolute until the parties’ are agreed on financial terms following their split and this is reflected in a court order. However, in some cases parties desire a decree absolute as soon as possible, but this may have financial repercussions for the other party.