Divorce after five years separation: the old ground for divorce

No-fault divorce was introduced in England and Wales on April 6th, 2022 which removes the need to choose a ground or reason to support the 'irretrievable' breakdown of a marriage.

All the information below is applies to the previous system, and divorces that were issued before April 6th, 2022.

You can read more about this change in our no-fault divorce guide.

There are five ‘grounds’ in English and Welsh law that could be relied upon to prove your marriage or civil partnership has broken down past the point of repair. Definitions of these facts can be confusing; this blog explains what the five years separation ground for divorce is and how it was used for divorce or dissolution (for civil partnerships).

Applying for divorce using the five years separation rule

How is ‘five years separation’ defined in England and Wales?

In English and Welsh law, five years separation is defined as you and your ex-partner having been separated for at least five years. This means you must have been physically separate (living apart, sleeping separately and keeping your finances (bills etc) separate for at least five years).

If you’re not sure if five years of separation is the right ground for divorce in your situation, read our blog on the reasons, or 'grounds for divorce/dissolution' in England and Wales.

Does my partner have to agree?

At the time, your partner didn’t have to agree to start divorce proceedings if you used five years separation as the reason. However, you must’ve been able to provide an address for your partner, so that the court can send your ex the divorce application (previously called the divorce petition).

If your ex didn’t agree, this will slow down the process. For more tips to speed up your divorce, read our quick divorce blog.

Tip 1: If you wanted to have an amicable separation, we used to recommend discussing the grounds for divorce with your partner first. Prior to no-fault divorce, seeing which grounds for divorce your ex-partner would be more comfortable with was something we recommended discussing. But in general, by including your partner in the process, you’re more likely to reduce acrimony later on.

How did you start the process of divorce after five years separation?

• Decide how you’ll get divorced or dissolve your civil partnership. Are you going to do it yourself or will you need someone to help?
• You will also need to send a copy of your marriage/civil partnership certificate (in English).
• You may also need to pay the divorce court fee which is £612 (at the time it was £550).

Tip 2: Check if you’re eligible for a discount on the government court fee by using our free court fee calculator.

“What if me and my ex-partner don’t speak anymore?”

If you’re not in contact with your ex, you will still need to demonstrate to the court that you have tried all reasonable means to find them. For example, contact relatives, their place of work and last known address. If you can demonstrate to the court that you have done this and you’re still unable to find them, you can apply to ‘dispense with service’ - this is the process of proving to the court that you’ve tried everything in your power to get an address for your ex-partner’. If you think this applies to you, speak to one of our experts by booking a free 15-minute call to find out about our ‘missing spouse service’.

Alternatively, you can visit this website if you believe your ex-partner is in the UK still. You can try an online tracing service also like 192. And finally, you can try the international family law group if you believe your ex-partner is abroad.

How long does it take?

This depends on your personal situation and whether you’ve already agreed on plans for childcare and financial arrangements. You can complete this divorce timeline to get a bespoke answer.

A simple divorce or dissolution takes a minimum of seven months, whereas a more complex one can take longer.

Beware of companies promising quick divorces within 12 weeks as this just isn’t possible due to the workload of most divorce centres.

Are online divorces faster?

There are advantages and disadvantages to having an online divorce. If you or your partner aren’t particularly tech-savvy, an online divorce may not be the best choice, or the fastest if you’re going to do it yourself.

How much does it cost? Can I divorce for free?

Divorce is rarely completely free. You may need to pay the court £612 to process your divorce. However, you may be eligible for a discount on these fees. Just click here to find out if you're entitled to a discount.

Apart from the court fees, you have a choice about how you divorce. To work out what’s best for you, it’s worth speaking to us and we’ll talk you through the options to divorce.

If you're looking for tips on how to save money on your divorce, you can read our blog on how to keep the costs of divorce down.

How did five years separation affect the divorce/dissolution paperwork?

The divorce petition (now called the divorce application):

If five years separation was used as the grounds for divorce/dissolution, then you needed to include the date you stopped living together as a couple.

The acknowledgement of service:

If you used five years separation as the 'fact' to rely on, you didn’t need the consent of your ex. The acknowledgement of the service form had to be completed by the respondent (the person responding to the petition). However, they didn’t need to agree to the grounds. They may have chosen to defend the divorce, and this may have impacted the cost and time it takes.

The decree nisi (now called the conditional order):

The decree nisi was/is the middle stage of the divorce and included the D84 and D80 forms. If you used five years separation pre-no-fault divorce, the D84 form was the same regardless of the grounds. However, the D80 form changed depending on the grounds used. For five years separation, it was the D80 E form.

Tip 3: Remember to include your and your ex’s address history on the D80 E form, so that the court knows you haven’t lived together as a couple since separating.

The decree absolute (now called the final order):

The decree absolute doesn’t alter based on the grounds used. If you would like to read more about the divorce process, we have a helpful guide on how to submit for divorce.

If you have any questions or would like some support, please book a free 15-minute call with one of our experts here.

FAQs

Can I get a financial settlement after five years separation from my ex-partner?

If you’re looking to get a consent (financial) order on divorce or dissolution, you must have received your certificate of entitlement following your conditional order (previously called the decree nisi) which confirms a judge has reviewed and approved your divorce or dissolution. In the old system pre-no-fault divorce, there was also an extra step in which the judge would review your grounds for divorce and see if there was substantive evidence to support the claim that the marriage has broken down irretrievably. Today, you can start the financial separation process after receiving your certificate of entitlement.

Does the cost of divorce after 5 years separation change?

Before the introduction of no-fault divorce, the cost of applying for a divorce, not accounting for any reductions or discounts on court fees, was the same no matter which ‘ground for divorce’ you chose.

How long do I have to be separated to divorce?

You must be separated for a minimum of two years if you’ve got the consent of your ex, or five years if you don’t. Alternatively, you can use unreasonable behaviour and note the separation as an example of unreasonable behaviour.

How long do you have to be separated before you get an automatic divorce?

There’s no such thing as an automatic divorce, however, if you’re separated for over five years, you don’t need the consent of your ex to use the grounds for divorce of five years separation.

What to do if your partner disputes that you have lived apart for five years?

You may need to prove it. You can prove this by showing household bills/ information about when you/they moved out. You can also look into amending the divorce application (previously called the divorce petition) and changing the reason for divorce to one of the other options.

How long does a divorce take if the other party doesn’t agree?

If your ex won’t sign the divorce/dissolution paperwork, this will likely slow down the process. This also depends on the grounds for divorce. For example, if you use two years separation, you need your partner’s consent, so if they won’t sign, you’ll have to submit an amended divorce application (previously called the divorce petition) using a different reason.

Is UK divorce law the same as English divorce Law?

UK law describes four different legal systems in the UK. When we talk about England and Wales, we are generally talking about the English and Welsh legal system. Scotland and Ireland have completely different legal systems. The divorce laws, therefore, change depending on which legal system is used.