Although it’s no longer possible to use the 5-year separation rule to file for a divorce, it was once a common ground used by divorce applicants who sought a straightforward divorce after being unofficially separated for a long time. In this article, we explain how the 5-year separation divorce rule worked and what you can expect now when you divorce.  

What is the 5 years separation rule?

Prior to the introduction of the no-fault divorce laws in England and Wales in April 2022, to file for divorce, a spouse had to state one of five grounds. There were: unreasonable behaviour, desertion, adultery, separation after 2+ years or separation after 5+ years. 

The difference between the five- and five-year separation rule was that to divorce after two years, both parties must be in agreement. With the five-year rule, an applicant did not have to agree to file for a divorce petition. It was a common ground used for those couples who typically did not have children together, or who had become estranged for many years. According to Major Family Law if spouses are divorcing later in life, it can come as quite a shock to hear that a partner wants a divorce, but there are several effective ways you can respond to the turmoil this may cause.  

5-year separation myth 

Many couples believed that by simply not living together for five years and losing touch, they could obtain an instant divorce without the consent of the other spouse. However, spouses still had to demonstrate to the courts that they had done everything in their power to find their estranged spouse and notify them of their intention to file for divorce.

Problems with the 5-year divorce grounds 

If it was not possible to find the address of a spouse, then the divorcing party had to show clearly to the court that they had tried their utmost to trace their whereabouts and had given them a reasonable timeframe to respond. For example, they could evidence how they tried to locate them at their old address, spoke to members of their family, sent them messages, emails or attempted to use social media to contact them. 

Sometimes, spouses do not want the divorce and simply refuse to cooperate. When this was the case, the person filing for the divorce could either ask the courts to serve the divorce papers to them or hire someone to do it privately, in both cases, fees are applicable. Doing this then allows the applicant to prove that the documents have been delivered and received. They will then be able to supply a Statement of Service to the court detailing the time and method of the papers being served. 

No-fault divorce laws 

The new no-fault divorce laws were brought in chiefly to simplify the divorce process no matter what grounds were applicable. Instead of having to cite a particular reason for the divorce, couples can now file for divorce under the universal banner of ‘irretrievable breakdown of a marriage’. This helps to speed up the process in many cases and it also allows for more privacy because neither party has to prove a fault from the other. 

Although some argue that the new rules can leave one partner’s bad behaviour unaccountable, the laws have been largely welcomed. This is mainly because it helps couples who are reticent to highlight negative reasons for their divorce, that may cause further conflict. In addition, it also helps those who previously had to wait five years before applying for a divorce because they can now apply jointly or solely after 12 months of being married.