Can a Separation Be Used as Grounds for Divorce?
For you and your spouse to be considered as to being separated, you have to be living apart. A lot of couples often opt not to take the divorce route. As such, it is common for them to make a Deed of Separation that records any agreements you come to concerning children, financial matters, or plans to divorce. It is imperative that either party is careful when signing this document as it could be used in the event that you decide to proceed with divorce. If you both had legal advice when signing this agreement, the court will often not overturn any part of the covenant at a later date as long as both parties were honest, and the circumstances haven’t changed.
This is referred to as legal separation. Although not common, it is the preferred option if either or both parties have a religious objection to divorce. Nevertheless, it follows similar court procedures as divorce in that the court retains the authority to settle financial disputes apart except for the splitting of pensions. The court will also resolve any children-related disputes.
This option, however, needs to be carefully considered using the help of a solicitor.
So, what are the grounds for divorce?
For you to get a divorce, you must prove to the court that your marriage irreversibly broken down. This implies that either one or both of you can no longer stay married to the other. Either party can then apply to the court for the union to be dissolved. However, you must have been married for at least one year before you can apply for one. This divorce application is referred to as a petition and the one who files is called the Petitioner while the other spouse is known as the respondent.
As such, you must prove either of the following facts:
Your spouse has had an affair(s) outside the marriage and you find it intolerable to live with them anymore. On most occasions, you can only prove adultery by having them admit to doing so. If they do not, you must seek advice from your solicitor.
Note that if you proceed with living with your spouse for more than six months after you have found out about their extramarital relations, you may no longer be able to use adultery as a ground for divorce. This is unless, of course, the infidelity is ongoing.
2. Unreasonable Behavior
This implies to behavior from your spouse that you cannot be reasonably expected to keep putting up with. Bad behavior covers a broad spectrum. Thus, you must think about all the critical things that make it impossible for you to continue living with them. You shall then sum them all up in a few paragraphs in the divorce petition.
However, be sure to avoid appearing emotional or vindictive as this may hamper your negotiations. Similar to adultery, you cannot use a single event that occurred more than 6 months ago as the basis of your petition and you’ve still been living together all this while. Unless the behavior is repetitive.
This implies to your spouse leaving you for more than two years without good reason and without your agreement.
4. Two Years separation
This refers to a situation where a couple has been living separately for more than two years. If one party proposes divorce to the other and they accept, it will be known as a ‘no-fault’ divorce. Nevertheless, you may have had periods where you lived together; but they should not add up to more than 6 months.
5. Five-year separation
This is applicable in a situation where you have not been living together for more than five years. Thus, your spouse does not need to agree to it. It means that they cannot defend your divorce petition. However, they can still request the court not to grant the final verdict if there are financial woes or other kinds of hardships.
Adultery and unreasonable behavior account for over 70% of all cases. In cases of separation, you need to have lived apart for more than two years before you can file for a divorce. Nevertheless, only the ‘Two Years Separation’ needs the formal consent of your partner. If your case involves desertion or a separation of more than five years, you do not need their consent to file the papers.
Ideally, both parties have to agree that the marriage can no longer work. Additionally, if it is their behavior or adultery that is the reason behind your petition, ensure that you both agree on the contents of the petition so that they cannot dispute it at a later date. Therefore, it is recommended that your attorney sends a draft petition to their solicitor for agreement. In the event that this is not possible, talk to your lawyer so you can measure your steps.
From the guide above, you can see that choosing the right ground divorce depends on your individual situation. Therefore, some divorces can be simple while others can be complex.
With regards to separation, the 2-year separation is perhaps the quickest and most amicable way of obtaining a divorce. Nevertheless, this does require that both parties agree to it.
If you cannot use two years separation as grounds for your divorce, consider using unreasonable behavior as the basis of your petition. The divorce landscape can be messy if not handled expertly. Therefore, you will need a lawyer with expertise on the matter to help you reach an amicable solution.