Two Years Separation – the quicker option?

Jo Spain, family law solicitor

I am often asked “Should I wait until I’ve been separated for two years and then I will be automatically divorced?”.

The answer is that it is not the case that the divorce is automatic.  The same paperwork is filed at Court whichever fact is relied on.

If you wish to separate and divorce later then you can do so on the basis of two years separation as long as your spouse consents.  If they do not consent (in writing on the Court form) then you cannot rely on this fact.

Often this is referred to as a “no fault” divorce and may be preferred if neither party wishes to blame the other for the breakdown of the marriage.

You do not have to register the date of your separation when you separate.  As the other party has to consent they will need to agree the date at the time of divorce.  You will also have to swear to this date and so should be careful that you are truthful.  Having said that you may have entered into a Deed of Separation when you separated in which case the date is recorded on this document.

If you wait until you have been separated for two years then you are delaying obtaining a Court Order finalising financial matters.  This may be a disadvantage and leave you without protection.