Terry & Co.

Divorce - Desertion or Separation

 


 

 

 

 

 


Desertion and five years' separation without consent are relatively uncommon grounds for divorce in England and Wales although divorce on the basis of two years' separation with consent is frequent enough. The reason that these three grounds are all to some extent less favoured by parties seeking divorce is that they each involve some sort of delay unlike the grounds of adultery or unreasonable behaviour which, in effect, permit "instant" divorce. For most people a delay of two to five years is simply too long to contemplate and each of these three grounds tends to be relied upon because neither of the other two are available. It is, however, perhaps fair to point out that divorce after two years' separation with consent is also sometimes chosen by couples who want an "amicable" divorce and do not want to, or cannot, make the allegations necessary for a quicker divorce.

 

Desertion.

If one party to a marriage "deserts" the other for a continuous period of two years then it is possible to seek a divorce on this ground. For instance, a husband or wife might just say, "I'm leaving you", and walk out. After two years have passed this would be sufficient to found a divorce based on desertion once there has been a continuous period of two years of living apart.

In practice this ground is not much relied upon because it is often difficult to prove. For example, the husband in the above instance might say nothing and just go to work overseas for a period of two years. This may or may not be desertion. If at the moment of leaving the husband had the intention of never returning then it would qualify as a period of desertion from the moment he left. On the other hand, he may not have formed this intention until he had been absent for a year. In this latter case he could only be considered to have been in desertion for a year. After all, spouses can and do work overseas or away from home. It can be seen that enquiries of this nature into someone's intentions and the absence of extrinsic proof of this intention does sometimes make relying on this ground quite difficult in practice. More often than not a couple in this situation will either seek a divorce on the grounds of two years' separation with consent or the spouse who was left at home will petition within six months of the departure on the basis that it was unreasonable behaviour for him to have taken such a job without consulting her. Factors such as these illustrate why this ground for divorce is relatively uncommon.

 

Two years' separation with consent.

Of all the grounds for divorce this is the one which lends itself best to the so-called "amicable" divorce. There are no allegations of behaviour made and the matter must necessarily proceed by consent. All that is necessary is that both parties must have lived apart for two years, that one petitions for divorce and that the other consents. It is quite simple and rarely causes any problems. Naturally, before presenting a petition on this ground it is prudent to make sure that such consent would be forthcoming. If there is no consent then the parties must live apart for five years before one of them can seek a divorce against the other's will.

 

There is perhaps one other thing which should be said about this ground for divorce. It is frequently suggested that the spouses should live apart for two years and then petition for divorce. In fact if the marriage has broken down beyond repair it is rarely a good idea to wait for two years before ending it. If one has a choice in the matter then it is almost always better to petition for divorce sooner rather than later. There are two pitfalls involved in waiting:-

1. Divorce after two years' separation is based on consent. It is not uncommon when those two years have elapsed for that consent to be withheld (for all sorts of rational and/or irrational
reasons). If that were to happen then the other spouse might have to wait until they have been separated for five years before he/she can obtain a divorce without consent. Five years is a very long time to wait.

2. It is important that to understand that the courts decide financial
issues between divorcing couples as at the time they are asked to decide and not as at the time of any separation. This means that assets acquired after separation are taken into account. This offends most people's sense of justice but it is the way the law works and it is important to be aware of it. Therefore by not seeking a divorce sooner rather than later a person is potentially taking a gamble on the future. Most people do not want
to take that risk.

 

Five years' separation without consent.

If a marriage has irretrievably broken down and the parties have lived apart for a continuous period of five years then either party may seek to obtain a divorce regardless of whether the other party consents or not. It would be obviously wrong for one of the parties to a marriage to be able to keep alive the empty shell of a marriage after such a long period of living apart if the other wanted to bring the marriage to an end by divorce. Very frequently, of course, the reason why a divorce is desired at all is to enable remarriage and this cannot happen until the first marriage has been formally brought to an end. Unfortunately, such a lack of consent does sometimes arise and so this ground of divorce is necessary as a ground of last resort. Sometimes people refuse to give their consent for religious reasons and sometimes it is just to be difficult. If there were no remedy in this situation it would cause great unhappiness. As it is, the period of five years may be thought much too long by many.

 

Nevertheless, it is important to realise that it is not always possible to obtain a divorce even on this ground. This is because Parliament has provided a specific defence to such petitions in very limited circumstances. In practice this defence can rarely be made out but it is important to realise that there is no absolute right to a divorce even after a separation of five years.

 

A court can in fact refuse a divorce on this ground if the person opposed to the divorce can establish that to grant the decree would cause her (in almost all cases the defence is mounted by the wife although it is not theoretically limited to wives) "grave financial or other hardship and that it would be wrong in all the circumstances to dissolve the marriage." Normally this defence applies in cases of long marriages where the wife is elderly and where she would suffer deprivation of, for example, substantial pension benefits if the divorce went though. It is a difficult defence to make out and such cases are rare but there is a defence even to this ground of divorce of last resort if one meets the necessary criteria.

 

Please contact David Terry at David_Terry@dterry.demon.co.uk if you need specific advice. Desertion and five years' separation by consent are uncommon grounds for divorce in England and normally if one is proceeding on either of these grounds there are special factors which probably make the taking of legal advice a sensible thing to do.