The most common divorce questions answered.

Do I get an automatic divorce after 2 / 5years?

NO. You will still need to file a petition, pay a fee and do exactly what you would do if you were divorcing straight away based on adultery or behaviour.  The cost is the same and the procedure is the same.   If your spouse gives consent, you can divorce him/her based on the fact that you have been living separately and apart for two years.  If your spouse will not consent, you can wait until you have been separated for 5 years and issue a petition without their consent.  

The risk of waiting 2 or 5 years is that your financial obligations to one another remain until you are divorced.  Do also take advice from your accountant because the tax rules depend on when you separated so you may lose capital gains tax exemptions. 

Finally, most couples simply want closure as soon as possible and do not like the idea of revisiting the breakdown of marriage after 2 years and certainly not after 5 years.  A behaviour petition is the most common.  It can be done by agreement and the spouse can always deny allegations but still allow the petition to proceed.

What if my spouse does not reply to the divorce petition?

If you know that your spouse has got the divorce petition and he/she is deliberately choosing not to reply, you may consider applying to the court for an order that the petition be deemed served upon him/her.  If you can prove that he/she has the petition, this order will be granted.  Armed with this order, you may then apply for Decree nisi and no further input will be required from your spouse – easy!

I don’t know where my spouse lives, can I still divorce him/her?

You may apply to the court to dispense with service of the petition.  You will need to prove that you have done everything you can to find him/her.  This will include contacting relatives, old friends, using Facebook, old employers etc.  You will need to file an affidavit going in to detail about your efforts and you may even need to put an advert in the local paper in the place where he/she last lived.  If the court is satisfied that you have done enough, permission will be granted and you may proceed with the divorce. 

My spouse has torn the papers and refuses to sign them.

There is nothing better that receiving a text message from the spouse confirming that they will not sign the papers and to boot, providing a photo of the torn papers.  This is perfect from an evidential point of view.  You simply forward the text and photo to be attached to your affidavit and apply for deemed service as explained in my answer to question one above – bingo!

Best regards,

Harjit Sarang