There is sometimes confusion about what separation means when filing for divorce. Some people believe that if couples have been separated for more than 5 years, divorce ‘just happens’. Others believe that sleeping in separate bedrooms qualifies as separation in divorce. Both assumptions are wrong.
To proceed with a divorce based on separation for more than 2 years, both parties have to agree. If one does not agree, then another ground must be used (adultery or unreasonable behaviour).
To proceed with a divorce based on separation for more than 5 years, both parties do not have to agree. However, divorce does not magically happen on the 5th anniversary of the date of separation. Divorce on this basis follows the same procedure as a divorce based on any other ground. The paperwork is the same, it takes the same time and the costs are the same.
The law allows for short periods of cohabitation during the period of separation before time starts again. Here’s an example:
David and Victoria decide to separate and David moves out of the marital home on 1 January 2011. They decide to try to reconcile and David moves back to the marital home in May 2011. He moves out 3 weeks later. They then decide to spend time together for the sake of the children over Christmas 2011 and David moves in again for 2 weeks. In August 2012, they decide to give the marriage one last chance and David moves in for 4 weeks but they come to the conclusion that the marriage is over.
Victoria decides to commence divorce proceedings based on separation for 2 years and David agrees. However, she cannot send the Petition to the Court on 1 January 2013. She must wait a further 9 weeks as she must add the periods of cohabitation to the end of the 2 year period of separation.
The answer is no. Separation means, in most cases, living in different properties. It is very difficult to persuade the Court that you are separated if you are still living under the same roof. To prove separation if you do live in the same property, you need to show the Court that you live separate lives, e.g. sleep in different rooms, shop for food separately, cook your meals separately, do your washing separately and not spend time together in the same home.