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Thomas, Solicitor
Category: UK Family Law
Satisfied Customers: 7617
Experience:  BA (Hons), PgDip, Practising Solicitor
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My husband has been in prison for 2 years and has another 2

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My husband has been in prison for 2 years and has another 2 and half years to serve. I would like to divorce him.
Currently the house is the main area of our lives which is jointly owned.
is itpossible to divorcehim based on non cohabitation?
Thank you
Mary Tod

Thanks for your question.

Spouses are treated as living apart unless they are living with eachother in the same household (s(2(6) MCA 1973).

In order for parties to divorce on the basis of a two year separation both parties must consent to the divorce. Either party can petition the other on the basis of two year separation but should only do so with the prior agreement of the other party (to avoid the potentially sunk cost of the county court issue fee for the petition). One party (ie. you) must also regard the marriage as shell, never intending to live with the other spouse again. There is no point petition on a 2 year basis if he will not consent to it so you would have to check

The fact that you still own a property together and that he is in prison would not prevent you issuing on this basis if he is willing to consent to the divorce on a 2 year separation basis.

If he is not willing to consent and he has not been adulterous then your only options are to either petition on the basis of his unreasonable behaviour or wait until you have been separated for 5 years and then petition on this basis (for which his consent is not required)

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Kind regards,

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