This fact requires firstly that the parties have lived separately for 2 years immediately before the divorce petition is issued and secondly, that the parties agree to the divorce.
There must have been a continuous period of 2 years where the parties have lived separately.
Whilst this often will involve a physical separation where one party has moved out, this is not the only possibility. Couples can be considered to live separately even where they have been living in the same house if they can demonstrate that they have been living completely separate lives, for instance cooking separately, eating separately and sleeping separately.
The court will also look for a mental intention to separate. The parties must show that they do not intend to live with their spouse again and that they view the marriage as at an end for the 2-year period to commence. If there is another reason the parties have lived apart e.g. for work, this may not form the necessary intention. The parties will need to demonstrate they have been living apart for the purpose of obtaining a divorce.
During the 2-year period, there may be times where the parties attempt to live together again. As long as these periods do not total more than 6 months, this does not affect someone's ability to petition based on this fact.
However, it must be remembered that the court still needs to see a full 2-year period of separation. Therefore, any time where the parties cohabit cannot be included in this 2-year period.
The respondent to the divorce petition must consent to the divorce once the petition has been issued. This will be sought in writing and is an important element of this ground.
Our two-minute cartoon quickly advises on the five grounds for divorce.