Requirements for a Divorce

Before applying for a decree of divorce, the following conditions must be met:

  • That the spouses have lived apart from one another for a period of at least four years during the previous five years
  • That there is no reasonable prospect of a reconciliation between the spouses
  • That such provision as the court considers proper having regard to the circumstances exists or will be made for the spouses and any dependent members of the family

An explanation of each of these preconditions is described below.

Time lived apart

“Four years during the previous five years” may sound a little confusing. The applicant should calculate five years ago from today - which would be the 20th Oct 2012. The amount of time spent living separate and apart from one another since that date should be added up. If the amount of time is greater than 48 months, the precondition is met and a divorce application may be made. If the time spend living apart is less than 48 months, the applicant must wait until the difference in time has elapsed before applying.

It should be noted that separated spouses may share the same dwelling and still be considered ‘living separate and apart’. The most common reason for this is financial necessity, in that neither spouse can afford to move out. However, in order to be considered ‘living separate and apart’, there must be compelling evidence to establish that the spouses have been living separate lives and essentially operating two separate households in the one property. The action of separating must involve an open and complete break from the marital relationship and may include:

    • the ceasing of sexual activity
    • living in separate rooms
    • operating separate bank accounts
    • not sharing meals
    • not providing household services
    • not sharing entertainment inside or outside the home
    • not representing to relatives, neighbours or friends that the marriage is continuing

    Example 1:
    Jane separated from her husband on the 1st January 2005. Since that time, she has not reconciled with her husband for any length of time. For the calculation, we must check how long has she been separated since 20th Oct 2012 (5 years ago from today).

    Date RangeTime Living TogetherTime Living Apart
    20 Oct 2012 to 20th Oct 2017   5 years, 0 months and 0 days

    Since she has never reconciled with her husband, she has been separated for all 5 of the previous 5 years. Jane has met this precondition and can apply for a divorce.

    Example 2:
    Mark separated from his wife on the 23rd Dec 2013. Since that time, he has not reconciled with his wife for any length of time. For the calculation, we must check how long has Mark has been separated since 20th Oct 2012 (5 years ago from today).

    Date RangeTime Living TogetherTime Living Apart
    20 Oct 2012 to 23rd Dec 2013 1 year, 2 months and 3 days  
    23rd Dec 2013 to 20th Oct 2017   3 years, 9 months and 27 days

    We can subtract 23rd Dec 2013 from today's date which results in 3 years, 9 months and 27 days which is less than four years. Mark cannot apply for a divorce before 23rd Dec 2017

    Example 3:
    Gillian separated from her husband on the 27th Dec 2012. She resumed her relationship with her husband on the 24th Sep 2013, but separated again one month later on the 24th Oct 2013. For the calculation, we must check how long has Gillian has been separated since 20th Oct 2012 (5 years ago from today).

    Date RangeTime Living TogetherTime Living Apart
    20 Oct 2012 to 27th Dec 2012 0 years, 2 months and 7 days  
    27th Dec 2012 to 24th Sep 2013   0 years, 8 months and 28 days
    24th Sep 2013 to 24th Oct 2013 0 years, 1 month and 0 days  
    24th Oct 2013 to 20th Oct 2017   3 years, 11 months and 26 days
      Total More than 4 years and 8 months

    In this case, despite Gillian having reconciled with her husband since her first separation, in the last five years she has been separated for more than four years and she can apply for a divorce.

    Prospect of Reconciliation

    After a minimum of four years separation, a reasonable prospect of reconciliation, most probably, does not exist, especially in cases where one spouse is considering re-marriage. However, it is a requirement under section 6 of the Family Law (Divorce) Act 1996, that the solicitor who represents the applicant in a divorce, must discuss with him/her the possibility of reconciliation with his/her spouse. The applicant's solicitor must also ensure that the applicant is aware of the alternatives to divorce. Theoretically, a court may refuse to grant a divorce to a couple if one party claims that the marriage could possibly be saved, perhaps with the assistance of a third party. In our experience however, we have never encountered this.

    This may be, as Section 8(1) of the Family Law (Divorce) 1996 Act states, “Where an application is made to the court for the grant of a decree of divorce, the court shall give consideration to the possibility of reconciliation between the spouses concerned, accordingly may adjourn the proceedings at any time for the purpose of enabling attempts to be made by the spouses if they both so wish, to affect such a reconciliation with or without the assistance of a third party”.

    As the section clearly states, both parties must wish to affect a reconciliation. You can read more about this topic in the Divorce Alternatives section.

    Proper Provision

    This relates to proper provision for the spouses and dependent members of the family. When it grants the decree of divorce, the court may also make orders in relation to custody of children and access to them, the payment of maintenance and lump sums, the transfer of property, the extinguishing of inheritance rights, pension rights etc. In making these decisions, the Court must have regard to the following matters:

    • each spouse's wealth, ie. the income, earning capacity, property, pensions, benefits and other financial resources
    • each spouse's accommodation requirements
    • each spouse's financial needs, obligations and responsibilities
    • the standard of living of the family before the separation
    • the duration of the relationship
    • any physical or mental disability of either of the spouses
    • each spouse's contribution to the welfare of the family, ie. financial contributions, upkeep of the family home, caring for family
    • the effect on the earning capacity of each of the spouses as a result of the marriage

    In most DIY divorce cases however, the issue of proper provisions has been fairly dealt with in advance, to both parties' satisfaction. If there are outstanding issues relating to the division of wealth, please read our Is DIY Divorce right for me? section.