Section 17(m) of the Matrimonial Causes Act (Chapter 282) is the only ground that requires no misconduct by either party.
Section 17(m)
That the parties have been separated and afterwards have lived separately and apart for a continuous period of not less than five years immediately preceding the date of the petition, and there is no reasonable likelihood of cohabitation being resumed.
Five continuous years, ending immediately before the petition. A resumption of cohabitation during the period breaks it.
No reasonable likelihood of cohabitation being resumed — a forward-looking assessment at the date of the hearing, not merely a long absence.
Section 25(2) — separation by one party alone
The parties may be taken to have separated notwithstanding that the cohabitation was brought to an end by the action or conduct of one only of the parties, whether constituting desertion or not.
So a petitioner need not show that the separation was consensual, and need not characterise it as desertion. A spouse who was left, or who left, may equally rely on section 17(m).
A decree may be made on the ground of separation notwithstanding that there was in existence at any relevant time — (a) a decree of a court suspending the obligation to cohabit; or (b) an agreement between the parties for separation.
So a decree of judicial separation or a formal separation agreement does not prevent the five years running — it helps to prove them.
Section 25(4) — the court must refuse in some cases
Where the Court is satisfied that, by reason of the conduct of the petitioner, whether before or after the separation commenced, or for any other reason, it would in the particular circumstances be harsh and oppressive to the respondent, or contrary to the public interest, to grant a decree on that ground, the Court shall refuse to make the decree sought.
The word is “shall refuse”. Unlike the section 29 discretionary bars, section 25(4) obliges the court to refuse once the test is met.
The provision exists because the separation ground is available to the party at fault. Without section 25(4), a spouse could desert, wait five years, and obtain a divorce over the objection of the abandoned partner.
The reference to “or for any other reason” and to the public interest makes the discretion wide. Age, ill health, and the respondent’s financial dependence are the matters most often relied on.
Section 25(5) — the court may require provision first
Where the Court is of opinion that it is just and proper that the petitioner should make provision for the maintenance of the respondent, or any other provision for the respondent’s benefit — whether by settlement of property or otherwise — the Court shall not make a decree on that ground until the petitioner has made arrangements, to the satisfaction of the Court, to provide the maintenance or other benefits on the decree becoming absolute.
The decree is withheld until satisfactory arrangements are made. That gives a respondent real leverage where the petitioner wants the divorce.
It operates alongside the ordinary Part VII powers over maintenance and settlement of property — but section 25(5) makes provision a precondition of the decree rather than a consequence of it.
Sections 25(6) and (7)
- Section 25(6) — the petitioner’s adultery. The Court may, in its discretion, refuse a decree on the ground of separation if the petitioner has, before or after the separation commenced, committed adultery that has not been condoned by the respondent, or that having been condoned has been revived.
- Section 25(7) — competing petitions. Where petitions by both parties are before the Court, the Court shall not make a decree on the ground of separation on either petition if it is able properly to make a decree on the other petition on any other ground.
Where one spouse petitions on separation and the other cross-petitions on adultery or cruelty, and that ground is made out, the court must decree on the fault ground rather than on separation.
That matters because the identity of the successful petitioner can bear on costs, on maintenance under section 73, and on settlement of property under section 75.
In practice
- Fix the date of separation carefully. Five continuous years is a long time, and the date is often disputed. Contemporaneous evidence — a change of address, a separation agreement, a court order, correspondence — is valuable.
- Watch for resumption. A reconciliation, even brief, may break the period. Note that section 10 encourages reconciliation attempts, and the Act elsewhere protects them from prejudicing a party.
- Expect the section 25(5) question. A petitioner seeking a divorce on separation should come prepared to address provision for the respondent.
- Consider whether a shorter ground is available — desertion at two years, or cruelty at one.
- Remember section 4. The Act does not apply to a customary marriage.
Sources
- Matrimonial Causes Act (Chapter 282) — ss 4, 10, 17, 25, 27–29, 40, 73, 75
Before relying on anything here, read the current text of the Marriage Act (Chapter 280) and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.