In a nutshell, yes you can. There may well circumstances that necessitate separating couples living together whilst going through a divorce and this has never been more prevalent then in recent times, going through the covid pandemic and entering a cost-of-living crisis.
There can also be a myriad of reasons why someone may want to continue living with their spouse whilst divorcing, be it wanting to save money whilst separating to wanting to maintain a semblance or normality, to try and lessen any upheaval for children.
Previous Divorce System
Living arrangements were a lot more relevant under the old divorce system. Whilst the basis for divorce remains the same being the ‘irretrievable breakdown of the marriage’, the court have dispensed with the necessity to lay blame at one another’s feet.
Previously, separating couples would have to satisfy one of five ground to prove that a marriage had indeed irretrievably broken down. When looking to establish one of the grounds, periods of cohabitation would have a bearing on whether it could be relied upon.
Adultery: If you cited adultery as the basis of your divorce and continued to cohabit with your spouse for a period of 6 months, or several periods that totalled six months, you could not rely on this ground.
Unreasonable behaviour: If unreasonable behaviour was cited, justification would need to be given to the court as to why you continued to live with your spouse during this period.
2 years separation with consent/ 5 years separation: Parties would need to satisfy the court that they have been ‘living apart’. Whilst separating spouses could look rely on this ground whilst they lived under the same roof, they would have to satisfy the court that they had completely separate lives, this would be to the extent that they had separate laundry, eating and sleeping arrangements. This was best exemplified in the case of Hollens v Hollens.
Desertion: – To rely on this ground, a party would need to prove to the court that they had been abandoned for a period of no less than 2 years. This could not be the case if you were still living under the same roof.
Current Divorce System
After the introduction of no-fault divorce on 6th April 2022, the courts of England and Wales have reimagined a system that was over 50 years old. In removing the necessity to say that your spouse’s behaviour was the reason for the marriage ending, separating couples can now take a much more amicable approach to their divorce or civil dissolution. Through removing the five grounds cited above, parties simply need to confirm that the marriage has irretrievably broken down within the application for divorce.
The change in the system now also allows parties to make joint applications for a divorce to facilitate an amicable separation, as a result whether you live under the same roof or not at the point of separation no longer holds any bearing with the court.
Should you any questions about getting a divorce or the divorce process entails please do not hesitate to contact a member of our specialist divorce team and we will be happy to assist.
