Can you automatically get divorced if you’ve been married for ten years?
A common question levelled at divorce firms and solicitors is ‘How long do I have to be married for a divorce to be automatic?’ and the answer is a complex one. There’s actually no set amount of time before you can process an automatic divorce because they simply don’t exist in British law. There is one set divorce process regardless of how long a couple has been married for, but the grounds for the divorce you’re seeking can vary based on how long you have been separated. Unhappy couples can divorce if one has committed adultery, if they have been separated for two or five years, based on unreasonable behaviour or under cases of desertion. Our ‘At a Glance’ guide can be used as a handy reference to how you can expect the divorce to proceed.
Five years of separation
There is a widespread myth that after five years of separation you can divorce your spouse without them being granted an opportunity to comment on or even see the papers that are being filed. It’s so widespread that we have tackled the issue in brief on our own blog, yet it keeps coming up again and again. The usual way a couple would begin proceedings, using five years of separation, would be with one member acting as petitioner and filing for divorce and the respondent returning their acknowledgement of service form to their local divorce centre to confirm they have been served by post with the petition. You can then apply or your decree nisi, which will be granted, and then the decree absolute. This process should take around four months but as divorce centres are regional, the time might differ in your local area. Provided you know where your spouse is, this method of divorce is an easy one, but if they don’t respond for whatever reason your options change.
They may have not responded because they didn’t receive the papers, in which case you need to prove they have been served with the petition. This can be done by asking the court bailiff to serve them personally, or by hiring a private process server to do this for you. This will cost anything from £100 to £200 depending on which method you choose but will stand as proof that they have been served and you can progress with your divorce and decrees in the usual way. Though it is true that divorcing after five years of separation can be done without consent, you must then satisfy the court that you have tried to contact your spouse to serve them the papers using all reasonable means. You must prove to the court that you do not know where your spouse is, and that you have contacted their friends and family to attempt to get in contact with them. You must also have taken steps to track them down using the electoral roll, their last known employer and even their bank.
Divorce without consent
It’s difficult to persuade a court to allow you to separate from your partner without consent unless you really have exhausted all possible avenues to try to get in touch with them, so it is in your interests to try your best to locate your spouse to reduce the cost of your divorce and the time is takes for you to get your decree absolute. You should send your completed forms to the last known address of your partner, and then your regional divorce centre will let you know if the divorce petition is returned unopened. If it is, you can then apply for the petition to be sent through another method such as via email, or by applying to have the centre search other government departments for their new address or other addresses. If all of your searches are fruitless, you will be forced to fill in the statement to dispense with service of divorce petition to ask the court to proceed with your divorce proceedings even though the respondent could not be served with the papers. This will incur a £50 court fee.
If your spouse is presumed dead and you have sufficient evidence, you don’t need to send your divorce petition and can then end the marriage using a D8D form. You will have to pay a £365 court fee and should take legal advice on gathering the appropriate evidence but can then use your form to remarry in the future.
We understand the process can be a confusing one, and we’re happy to answer any questions you might have in the comments. Remember to use as much detail as possible so we can give you the most appropriate advice.