ABSTRACT
This is not something that you will come across very often, but it does happen to a surprising number of people. Here, you have two options: (a) a divorce petition based on five years’
separation. If your client chooses this option, you will have to take a number of steps to trace the respondent (see 1.2) before you apply to the court for service to be dispensed with; or
(b) a decree of presumption of death which serves to dissolve the marriage. This decree is applied for in the same way as a divorce, by means of a petition to the court
Advice You must advise your client, during the course of the first interview, that a decree is not essential to effect a formal separation. A separation agreement can be used in two types of situations: (a) where your client wishes to live apart from
his/her spouse, but as a ‘trial separation’, as s/he is not sure that the irrevocable step of divorce is what she really wants at this stage, and there may be a possibility of reconciliation;
(b) where your client is fairly sure that ultimately s/he wants a divorce, but wishes it to be based on two years’ separation with consent and would like matters to be clarified between the parties for the length of the separation.
