Key points
This case in 30 seconds
- Situation
- After the client moved out, the couple lived apart. The spouse never agreed to a divorce.
- Approach
- As soon as he moved out, he issued a certificate of separation recording the date he moved out, and kept the tenancy agreement for his new address.
- Result
- After two years’ separation, he applied on his own on the ground of separation. The certificate and the tenancy agreement are the evidence of the separation.
Three points for handling this well
- Issue a certificate of separation as soon as you move out, recording the separation date.
- Keep the tenancy agreement for the new address as evidence for later.
- After two years’ separation, you can apply on your own even if the other spouse does not agree.
Background
After the client moved out, the couple lived apart.
The spouse never agreed to a divorce.
After moving out, he issued a certificate of separation to the spouse as soon as possible, recording the fact and date of the separation, and kept a copy himself.
He also kept the tenancy agreement for his new address as a record of the separation.
- Not sure whether not having signed a separation agreement affects a later application
- Worried that the spouse may later deny the date he moved out
- Not sure what evidence to keep
He had searched online, but different websites said different things, and he was not sure whether to keep evidence first or ask the court directly.
He wanted to be able to take the next step even if the spouse kept refusing.
When the other spouse does not agree to a divorce, the first step is to record the separation date and evidence clearly.
Why keep proof of separation first, then apply on the ground of separation?
In this case he chose to keep proof of separation first, because the spouse never agreed to a divorce. With records made early, he can still apply on his own on the ground of separation even if the spouse keeps refusing.
Why does the separation date matter?
The separation date must be stated in the divorce application. If the other spouse disputes the date, the applicant must prove it.
If the other spouse agrees, you can divorce after one year of separation. If they do not agree, you can divorce after two years of separation.
If the other spouse will not sign, how can you prove separation?
| Spouse willing to sign | Spouse not willing to sign | |
|---|---|---|
| What to do | Sign a separation agreement | Issue a certificate of separation |
| What to prepare | Identity documents and marriage certificate | Tenancy agreement and bills for the new address |
| Things to note | Both sign, fewer disputes | If the spouse disputes the date, you must prove it |
| Ground for divorce | If the spouse later agrees: one year of separation | If the spouse does not agree: two years of separation |
With records such as the tenancy agreement and certificate of separation, you have solid evidence if the other spouse disputes the separation date.
After two years’ separation, how do you apply?
After two years’ separation, keep your proof of separation.
File the divorce application on your own; the other spouse’s consent is not needed.
If the other spouse disputes the separation date, the applicant must prove it. The earlier you prepare the proof, the better.
For the separation agreement and proof of separation involved in this case, see “Separation agreement”.
Similar situations may also relate to “Spouse out of contact: a sole petition with substituted service”, which is also worth reading.
Once the separation date and evidence are settled, what remains is knowing how each stage works in practice.
How we helped
From the first consultation to the decree absolute, the same dedicated consultant follows your case, with help in three stages.
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Keeping records stage
After moving out
At the first consultation, the dedicated consultant first learns the date the client moved out and the spouse’s attitude.
We help the client first issue a certificate of separation recording the fact and date of moving out, and organise the tenancy agreement for the new address.
Making records soon after moving out is the key first step.
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Preparing and filing the application stage
After two years’ separation
We help draft the sole petition and organise the tenancy agreement and certificate of separation that have been kept.
Once the documents are ready, we help file them and arrange for the petition to be served on the other spouse.
The records already kept are the key basis for this step.
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Listing and decree stage
After filing
In cases with no defence, it takes about 50 days from listing to hearing.
After the court grants a decree nisi, we help follow up through to the decree absolute.
6 weeks after the decree nisi is granted, you can apply to make it absolute. For a sole petition this uses Form 5.
Throughout, the client could phone the dedicated consultant at any time, in Cantonese, Mandarin or English.
We explained every court letter first, and what needed following up.
We are a divorce consultancy. We help you organise information, prepare documents and understand the procedure. If your case needs legal advice or a representative in court, we will tell you honestly and help you make other arrangements.
With the three stages joined up, this was the outcome.
Outcome
After two years’ separation, he applied on his own on the ground of separation; the certificate of separation and the tenancy agreement are the evidence of the separation.
Because the separation date and evidence were kept from the time he moved out, this application follows the records already in hand, with no need to gather evidence again.
For the client, the biggest difference is this: even if the spouse later disputes the separation date, he has the tenancy agreement and the certificate of separation to rely on.
Throughout, the dedicated consultant organises the documents from the records kept, and reminds the client to watch for notices from the court.
Without records made early, proving the separation date often takes longer.
He has now filed the application, and the case continues on the evidence he kept. This was what mattered most to him at the start.
How does the procedure change if your situation is different?
The approach in this case was chosen because the spouse never agreed to a divorce. If the situation is different, the approach will change too.
If the spouse agrees, one year also works: if the other spouse agrees to the divorce, the required period of separation is shorter. You can also see “cases where both spouses agree to divorce (joint application)”.
Sharing a home during separation: even in the same home, with separate bedrooms, separate meals and separate finances, and your spouse aware that you are separating, the court may accept this as separation.
Separation agreement signed, applying later: if you have signed a separation agreement, the separation date stated in it can later serve as a record of the separation.
Three things you can do first in a similar situation
- Issue a certificate of separation as soon as you move out, recording the separation date.
- Keep the tenancy agreement for the new address as evidence for later.
- After two years’ separation, you can apply on your own even if the other spouse does not agree.
FAQ
How do you prove you have separated?
After moving out, he issued a certificate of separation to the spouse as soon as possible, recording the fact and date of the separation, and kept a copy himself.
Can you prove separation without a separation agreement?
The separation date must be stated in the divorce application. If the other spouse disputes the date, the applicant must prove it.
How long must you be separated before you can divorce?
If the other spouse agrees, you can divorce after one year of separation. If they do not agree, you can divorce after two years of separation.
After two years’ separation, must the other spouse agree before you can apply?
File the divorce application on your own; the other spouse’s consent is not needed.
What if the other spouse disputes the separation date?
If the other spouse disputes the separation date, the applicant must prove it. The earlier you prepare the proof, the better.
Do you always need proof of separation for a divorce?
Not always.
You do not need to submit proof of separation to the court unless the other spouse disputes the separation date.
Do you give legal advice or represent clients in court?
We are divorce consultants. We help you gather information, prepare documents and understand the procedure.
If your case needs legal advice or court representation, we will tell you honestly and help you make other arrangements.
Illustrative case: this page is adapted from similar cases we have handled. The people and details have been changed, and it is not a record of an identifiable client.
Every case is different, and the time taken and the result will vary. This page is general information only. It is not legal advice and is not a promise about your case.
