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To those that are unfamiliar with the rules surrounding divorce in England and Wales, it may seem odd that a Petitioner may choose to file for a divorce on the basis that they and their spouse have been living separately for either two or more years, or five or more. After all, any couple that had been living separately for five years or more would surely be eligible to file on either ground. So why, then, do two-year separation and five-year separation exist as separate grounds?

The answer to this question is relatively simple: in order to successfully obtain a divorce when the petition filed relies upon the grounds of two-year separation, both the Petitioner and Respondent must both consent to the divorce. If the Respondent indicates that they do not consent to the divorce, then the application will simply be unable to proceed. Should the petition rely upon the grounds of five-year separation, however, then the Respondent’s consent does not necessarily need to be obtained in order for the divorce to be finalised.

This is not to suggest that a married couple that have been living separately for, say, eight years and that both consent to a divorce should only file on the grounds of two-year separation. The process will inevitably prove to be quicker, cheaper and more tranquil if both parties agree to the divorce regardless of the grounds cited within the petition. If, however, one party does not consent to the divorce, then an application reliant on the grounds of two-year separation with consent is certain to fail whilst this is not the case when the grounds are five-year separation.

Whilst a divorce on the grounds of five-year separation can be achieved without the Respondent’s consent, however, it is by no means a straightforward task. In such a scenario, a Petitioner may need to hire a bailiff to serve their divorce petition on the Respondent if they refuse to acknowledge that they have received it or, should the Respondent choose to dispute the date of separation, employ a solicitor. There are other potential complications that could arise as well, but at least it will be possible to obtain the divorce.

So, whilst it is certain to be more straightforward if both parties agree to the divorce, it is still possible to obtain a divorce without ascribing blame provided the parties have lived separately for five years or more.