Divorce, judicial separation and nullity

Contents
1. Introduction 1.1. Divorce 1.2. Judicial separation 1.3. Nullity proceedings 1.3.1. Void marriages 1.3.2. Voidable marriages

Divorce and judicial separation are obtained by petitioning the court for a decree of divorce and judicial separation respectively. An individual may petition for divorce or judicial separation on the grounds of:

• Adultery
• Unreasonable behaviour
• 2 years’ separation
• 5 years’ separation
• Desertion

A petition for divorce can only be made after a couple have been married for a year and a day. Once granted, a divorce is final and the legal formality of the marriage is removed. Each party can move forward and rebuild their lives. There are no longer any legal restraints on either of them getting remarried once they are divorced.

A decree of judicial separation does not terminate a marriage, but does have other important consequences:

a) The petitioner is no longer obliged to live with the respondent (although obviously this is difficult to enforce anyway). But what this seeks to do is to make clear that the petitioner is not deserting the respondent. This is particularly important in divorce proceedings see:Grounds for divorce

b) The court may make financial orders once a decree of judicial separation is made.

c) Orders may be made in relation to children once a decree of judicial separation is made.

Judicial separation is rare, but it does have the following advantages over divorce:

d) There is no time restriction over when the petition can be presented. A petition for judicial separation can be presented to your husband/wife the day after your wedding should you wish to do so. In the case of a divorce, however, you must have been married for a year and a day.

e) There are often fewer religious objections to a judicial separation than to a divorce.

f) Some people find a judicial separation to be less traumatic than a divorce because it does not immediately end a marriage.

Another way to end a marriage is to make an application for a nullity decree. There are two ways to obtain a nullity decree on the grounds that the marriage is void or on the grounds that the marriage is voidable. If you wish to make an application for a nullity decree seek further legal advice.

A void marriage is not legally valid and will automatically terminate because it is theoretically void from the start. Therefore, there is no technical need to make an application for a decree of nullity because the marriage will almost certainly be void. However, you are strongly advised to make an application if you wish to annul your marriage so that you are free to marry again and officially bring your marriage to an end.

In law a marriage is void in the following circumstances:

a) The parties are closely related and are prohibited by law from marrying such as first cousins, brother and sister or son and step-mother

b) Either party is under the age of 16

c) The parties have intermarried in disregard of certain requirements as to the formation of marriage, e.g. they got married according to the rites of the Church of England, but did not get married in a church or other permitted place and were aware of this irregularity at the time of the marriage

d) At the time of the marriage either of the parties was married or a civil partner

e) The parties were not male and female

f) In the case of bigamy that either party was domiciled in England and Wales at the time of the marriage

To formalise the legality of the situation, you must make an application for a decree of nullity so that you may seek financial orders and are free to remarry.

If a marriage is voidable, it may be nullified by one of the parties and it will be as though it did not occur. In this scenario the marriage will be legally valid, unlike in the case of a void marriage, however it will be capable of being made void.

A marriage is voidable in the following circumstances:

a) It has not been consummated due to the incapacity of either party to consummate it

b) It has not been consummated due to the wilful refusal of the respondent to consummate it

c ) Either party didn’t validly consent to the marriage due to duress, mistake, unsoundness of mind or otherwise

d) At the time of the marriage either party, though capable of giving valid consent, was suffering from a mental disorder as defined under the Mental Health Act 1983

e) At the time of the marriage, the respondent was still suffering from venereal disease in a transmittable form

f) At the time of the marriage, the respondent was pregnant by someone other than the petitioner

g) An interim gender recognition certificate under the Gender Reassignment Act 2004 has been issued to either party to the marriage after the marriage

h) The respondent is a person whose gender at the time of the marriage has become the acquired gender under the Gender Reassignment Act 2004

Please note that the petitioner must be ignorant of the above circumstances at the time he/she gets married.

If a petitioner makes an application on the grounds of (c), (d), (e), (f) and (h) then it must be made within three years of the date of the marriage unless the court is satisfied that he/she suffered during that period from a mental disorder within the meaning of the Mental Health Act 1983 and the court considers that in all of the circumstances of the case it would be just to grant permission for the institution of proceedings.