Many people assume they must be separated for a set period before they can divorce. However, in England and Wales, this is not the case. Following the introduction of no-fault divorce in April 2022 the court now only require a statement confirming the marriage has irretrievably broken down.
In this blog, we explain everything you need to know about a separation before divorce.
Do you have to be separated before you can divorce?
No, you do not have to be physically separated before you can start divorce proceedings. Under the current law in England and Wales you can apply for a divorce based on the marriage having broken down irretrievably. There is no longer any requirement to set out any reasons for the breakdown of the marriage or any period of living separately.
How no‑fault divorce has changed things
The introduction of no-fault divorce in April 2022 simplified the process and removed the need to attribute blame or set out reasons for the end of the marriage. At the same time, the court introduced the ability to make an application either on a sole or joint basis.
These changes have generally had a positive impact for divorcing couples as it keeps the focus on the process rather than the relationship. It is easier for couples to focus on the legal issues rather than needing to identify fault, blame or look back over the relationship for unreasonable behaviour.
What remains important is the process itself. There is still a structured timetable to follow, including key stages before the divorce is finalised, and time for reflection built into the process.
What people often mean by “separation”
Separation can mean different things to different people. For some, separation begins when the relationship itself ends, even if practical arrangements take time to follow. This might mean no longer functioning as a couple, despite still sharing a home. For others they focus on the physical separation, one person moving out or the former family home being sold. The other common concept is financial separation, separate bank accounts, utilities being put into sole names and dividing assets.
These different aspects of separation do not always happen at the same time, and that is entirely normal.
When separation does still matter
Whilst the concept of separation no longer plays an important role in the divorce process that does not mean that it is not a relevant consideration for separating couples. This is particularly true when considering physical separation and financial separation.
If you have children, a physical separation often marks the point at which new routines and arrangements begin. This can take time to settle and may evolve as circumstances change. It is also important to have thought about how this change will be communicated to the children.
There is also a financial impact of physical separation. Decisions will need to be made about how to manage the additional costs of running two houses with two sets of utilities.
There are also some cases where the date of separation is relevant to how the court deal with the financial assets. In these cases, evidence of separation may become relevant if the issue becomes contested.
Common myths about separation and divorce
“You must be separated for two years”
Myth: This is a relic of the old legal system. It no longer applies to the current no fault divorce system.
“You can’t divorce if you still live together”
Myth: The court recognise that you can be separated but living in the same property. You can apply for a divorce even if you are still living in the same property.
“Separation automatically sorts out finances”
Myth: Separation does not resolve financial claims. The divorce process is distinct from resolving financial matters. Any financial issues will need to be dealt with separately.
Getting advice early
Understanding your position early on can make a real difference.
Separation and divorce often involve a combination of legal, practical and emotional considerations. Having a clear picture from the outset can help you make informed decisions and avoid unnecessary uncertainty later.
Importantly, there is no single “right” way to approach separation. You need to find a route that works for your particular circumstances.
Closing paragraph
Separation is no longer a legal hurdle to divorce in England and Wales, but it still plays an important role in how couples navigate the process. If you are unsure how your situation fits into the wider picture, particularly when it comes to finances, living arrangements or children, then taking early advice can help you move forward with greater clarity and confidence. Contact our team to find out how we can help.
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