This fact requires that the parties have lived separately for 5 years immediately before the divorce petition is issued. There is no need for the party seeking divorce to obtain the other party’s consent, the separation is sufficient.

There must have been a continuous period of 5 years immediately before the petition where the parties have lived separately.

Whilst this often will involve a physical separation whereby one party has moved out, this is not the only possibility. People can be considered to live separately even where they have been living in the same house if they can demonstrate that they have been living completely separate lives, for instance cooking separately, sleeping separately and going out independently.

The Court will also look for a mental intention to separate. The parties must show that they do not intend to live with their spouse again and that they view the marriage as at an end for the 5-year period to commence. If there is another reason the parties have lived apart e.g. for work, this may not form the necessary intention. The parties will need to demonstrate they have been living apart for the purpose of obtaining divorce.

During the 5-year period, there may be times where the parties attempt to live together again. As long as these periods do not total more than 6 months, this does not affect a party’s ability to petition based on this fact.

However, it must be remembered that the court still needs to see a full 5-year-period of separation. Therefore, any time where the parties cohabit cannot be included in this 5-year period.

When the marriage is broken down, the prospect of witing 5 years before officially obtaining divorce can be unappealing. It also is generally preferable to complete the process and resolve all the financial matters before the expiry of 5 years. This is because as time elapses it becomes more complex to try to resolve the financial matters existing between the parties, not to mention it provides greater certainty for the parties at an earlier stage.

There is also the possibility of bringing a petition under the fact of unreasonable behaviour which would be quicker. The court has previously been willing to accept a range of behaviours which are sufficient for this fact, even if they seem menial.