The court may find that a marriage has broken down irretrievably where the petitioner satisfies the court that the parties to the marriage have lived apart for a continuous period of at least one year (with consent of parties to separate) or two years immediately preceding the presentation of the petition (without requirement of consent by the respondent). The day of separation is excluded from the computation of the two-year period.
It is not open to the respondent to object to a petition where it is not disputed that the parties have lived apart for 2 years or more, except where there may be evidence of grave financial hardship. Hardship includes the loss of the chance of acquiring any benefit which the respondent might acquire if the marriage were not dissolved. Divorce will not be granted in situation where there is grave financial or other hardship to the respondent on a petition based on separation of two years, and that it would in all the circumstances be wrong to dissolve the marriage.
The period of living apart must be continuous. However, if the parties resume living with each other for less than 6 months, then the separation period before the reconciliation will count towards the separation term, and the period of co-habitation will not be counted. If the period of cohabitation is more than 6 months, then the separation period before the reconciliation will not count towards the separation term (restart all computation of separation period).
Is proof of intention needed? Can one party living away from home for business be taken as separation?
When parties are not physically living together in the same place, it does not mean that they are living apart or have become separated because they may be forced to adopt such a lifestyle by, for example, the nature of their work. Instead, the courts have recognized that spouses may be forced to live apart for various reasons, so a relationship does not end merely by reason of physical separation brought about by the pressure of external circumstances.
There must be proof of “intent” in the sense that there is an absence of mutual emotional, economic and general support or ties after the parties’ physical separation, and a recognition by the parties that the marriage has come to an end. When the fact of separation is proved, the intent to bring the marriage to an end can be inferred by court.
Separation under the same roof
If there is an intent to separate but by force of circumstance the parties live in the same house (like one party having no resources to move out), then the petitioner must clearly and demonstrably lead entirely separate live and are no longer living together on a daily basis as husband and wife. The parties should sleep in different rooms, have separate living arrangements, divide domestic duties clearly (i.e. don’t do any housework for each other), no sharing of meals, have no intimate or romantic relationships and communicate an intent to separate in writing if possible. Even in circumstances where the parties are living in different bedrooms but, say for example, still have meals together with the child; help do some shopping or laundering, or socialising together, there is a risk of the court considering that the necessary degree of separation is not established.